Citation Nr: 21014961 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-54 259 DATE: March 16, 2021 ORDER Entitlement to service connection for type II diabetes mellitus (diabetes) is granted. Entitlement to service connection for ischemic heart disease is granted. VETERAN’S CONTENTIONS Prior to the Veteran’s death, the Veteran sought service connection for coronary artery disease, bronchitis, and diabetes based on exposure to herbicide agents during his service at the Royal Thai Air Force Base (RTAFB) in Ubon, Thailand. Specifically, the Veteran contended that while stationed in Ubon, he was assigned to vehicle maintenance and was a member of the Alert Reaction Team that went to the flight line and outside areas in Ubon. See March 2016 E-mail Correspondence. The Veteran also stated that the Veteran worked in a maintenance facility that was located on the flight line, which is close to the perimeter. See April 2016 VA 21-4138 Statement in Support of Claim and February 2018 Ubon RTAFB Map. The Veteran also contended that he went out with security personnel and patrolled the perimeter of the base as a part of the Alert Reaction Team. Id. Lastly, the Veteran stated that he was required to complete drills at the base of the perimeter and would be stationed at the perimeter for days at a time. See February 2018 Veteran Affidavit. Additionally, the Veteran’s representative stated that there is some evidence that the Veteran’s heart condition may have aggravated the Veteran’s pulmonary conditions, chronic bronchitis and chronic obstructive pulmonary disease (COPD). In support of this contention, the representative asserted that the Veteran’s pulmonary conditions coupled with the fact that the Veteran’s cause of death was cardio-pulmonary arrest, show that the Veteran’s heart condition may have aggravated his pulmonary conditions. See January 2021 Appellate Brief. REMANDED Entitlement to service connection for the Veteran's pulmonary conditions is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during active duty service. 2. The evidence of record indicates that the Veteran had a current diagnosis of diabetes. 3. The evidence of record indicates that the Veteran had a current diagnosis of ischemic heart disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for ischemic heart disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for the Veteran’s pulmonary condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to August 1969. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in August 2018. The appellant is the Veteran’s surviving spouse, and she has been substituted for the Veteran in this appeal. In January 2020, the Board denied service connection for the Veteran’s ischemic heart disease, diabetes, and pulmonary conditions. For the issues of service connection for ischemic heart disease and diabetes, the Board implicitly found that new and material evidence was received, because the Board adjudicated these issues on the merits. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s denial of the claims for service connection and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. Service Connection As an initial matter, the Veteran contended throughout the appeal that he was exposed to herbicide agents during his active duty service in Thailand. The Board finds the Veteran’s lay statements regarding where he served to be credible and supported by the record such that the Board concludes that the Veteran was indeed exposed to herbicide agents during his active duty service. Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, VA has recognized that herbicide agents, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era. Specifically, if a Veteran performed daily work duties near an air base perimeter of a specific Thai military base, herbicide exposure should be acknowledged. The Veteran’s service personnel records (SPRs) reflect that he served at the Ubon RTAFB in Thailand as an auto repairman from June 1969 to September 1969. See June 1969 SPR. The Veteran contended that as a part of his activities, he was required to work on disabled vehicles on the flight line, which was near the perimeter of the base. See February 2018 Affidavit and February 2018 Ubon RTAFB Map. The Veteran also reported that he was assigned to the Alert Reaction Team, which was on guard at the perimeter at least once per month and that guard duty could last for several days at time. Id. The Veteran also stated that he attended drills at the perimeter as well. Id. The Board acknowledges that there is conflicting evidence in the record regarding the types of herbicides that were used while the Veteran was stationed in Thailand. Specifically, the July 2017 VA Memorandum determined that the Veteran was not exposed to herbicide agents while stationed in Thailand because no tactical herbicides were sprayed after 1964 in Thailand and the Veteran did not serve in Thailand until June 1969. See July 2017 VA Memorandum. In support of this finding, VA stated that the CHECO report indicated the sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Id. Further, a July 2017 response from JSRRC stated that there was no documentation that tactical herbicides such as Agent Orange were used on any US Air Force base in Thailand for vegetation control. See July 2017 JSRRC Report. In contrast, the Veteran asserted that there is no meaningful difference between commercial and tactical herbicides, suggesting that his exposure to either type of herbicide should render him eligible for service connection on a presumptive basis. See February 2018 Correspondence. In support of this contention, the Veteran provided the Department of the Army’s September 1968 Supply Bulletin SB 3-40, which lists twenty-five commercial herbicides as being available in the Federal Supply System. See February 2018 Correspondence pgs. 7-8 and 64. The Veteran contended that the document shows that all bases could commercially obtain herbicides through the Federal Supply System that contained the qualifying agents, 2,4-D; 2,4, and 5-T, which are listed under 38 C.F.R. § 3.307 as qualifying agents. The Veteran also provided a June 2005 letter from the Air Force stating that because commanders were at liberty to use herbicides for defoliation, the Air Force required no specific accountability for which types of herbicides were sprayed at the Ubon RTAFB. See February 2018 Correspondence p. 73. The Veteran stated that he recalled on a few occasions being told to stay inside due to chemicals being sprayed outside of the base. See February 2018 Affidavit. The Board finds that the Army’s September 1968 Supply Bulletin SB 3-40 is entitled to significant probative weight because it shows that herbicides were available for commercial use by the armed services. The Veteran’s lay statements coupled with the September 1968 Supply Bulletin and June 2005 Air Force letter, puts the evidence of record in equipoise as to whether the Veteran was exposed to herbicides containing the qualifying agents listed in 38 C.F.R. § 3.307. Therefore, the Board finds that the Veteran was exposed to herbicide agents in service. 1. Entitlement to service connection for the Veteran's diabetes is granted. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain diseases, service connection may also be granted on a presumptive basis due to exposure to herbicides. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Diabetes is such a disease capable of presumptive service connection. In the instant case, as indicated immediately above, the Veteran had qualifying service such that he is presumed to have been exposed to herbicide agents. Next, the medical evidence of record indicates that the Veteran had a current diagnosis of diabetes. See February 2016 Private Treatment Record. As 38 C.F.R. § 3.309(e) recognizes that diabetes is presumptively associated with exposure to herbicide agents, the Board finds that service connection is warranted. Accordingly, the Board grants the Veteran’s claim. 2. Entitlement to service connection for the Veteran's ischemic heart disease is granted. As noted above, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson 581 F.3d at 1313; Pond 12 Vet. App. at 341. For certain diseases, service connection may also be granted on a presumptive basis due to exposure to herbicides. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Ischemic heart disease is such a disease capable of presumptive service connection. In the instant case, as indicated immediately above, the Veteran had qualifying service such that he is presumed to have been exposed to herbicides. Next, the medical evidence of record indicates that the Veteran had a current diagnosis of coronary artery disease, which qualified within the medical definition of ischemic heart disease. See May 2016 VA Treatment Record. As 38 C.F.R. § 3.309(e) recognizes that ischemic heart disease is presumptively associated with exposure to herbicides, the Board finds that service connection is warranted. Accordingly, the Board grants the Veteran’s claim. REASONS FOR REMAND Entitlement to service connection for the Veteran's pulmonary conditions is remanded. The Board finds that the issue of entitlement to service connection for the Veteran’s pulmonary conditions must be remanded for further development. Specifically, the Veteran was not afforded a VA examination in connection with his pulmonary conditions claim, and the medical evidence otherwise of record is insufficient to grant the claim. The VA must provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for finding that the disability may be associated with service is low. Id. A Veteran is competent to report his observable symptoms and history, including the onset and timing of symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  In light of the Veteran’s representative’s contentions, as noted above in the Veteran’s Contentions section, regarding his pulmonary conditions being aggravated by his now service-connected ischemic heart disease, the Board finds that there is a sufficient indication that the Veteran’s pulmonary conditions are associated with his service. Accordingly, a VA medical opinion should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing deficiency, a VA medical opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Notably, regarding the pulmonary conditions, the VA examiner on remand should address whether the Veteran's ischemic heart disease caused or aggravated his pulmonary conditions. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran’s own descriptions of the history of his pulmonary conditions. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1.Send the claims file to an appropriate clinician or pulmonologist for an addendum opinion regarding whether the Veteran’s pulmonary conditions, COPD and chronic bronchitis, are related to his service, to include whether the pulmonary conditions are associated with the ischemic heart disease. The claims file, and a copy of the remand, must be reviewed by the examiner. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (a.) Please state whether it is at least as likely as not the Veteran’s pulmonary conditions were caused by the Veteran’s ischemic heart disease. (b.) Please state whether it is at least as likely as not that the Veteran’s pulmonary conditions were aggravated by his ischemic heart disease. Here, aggravated means worsened beyond the natural progression of the condition. In offering any opinion, the examiner should consider medical and lay evidence dated both since the filing of the claim (February 2016). The opinion should address and provide special consideration regarding the Veteran’s theory of the case- that is, his herbicide exposure and resulting ischemic heart disease caused or aggravated his pulmonary conditions. The examiner should provide a complete rationale for any opinion rendered. If the examiner’s opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.