Citation Nr: 21020976 Decision Date: 04/09/21 Archive Date: 04/08/21 DOCKET NO. 15-23 433 DATE: April 9, 2021 ORDER Entitlement to service connection for ischemic heart disease (IHD), diagnosed as coronary artery disease (CAD), is granted. Entitlement to service connection for type II diabetes mellitus (DM) is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran was exposed to herbicide agents in service. 2. The Veteran has CAD and DM. CONCLUSIONS OF LAW 1. The criteria for service connection for IHD, diagnosed as CAD, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for service connection for DM have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to April 1975, to include overseas service in Korea. The Veteran appealed an October 2012 rating decision by the Agency of Original Jurisdiction (AOJ). In February 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Veteran is entitled to the Department of Veterans Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is diagnosed with DM and CAD. See November 2018 VA treatment records; March 2020 VA examination report. The Veteran contends he was exposed to herbicide agents while stationed in Korea. VA laws and regulations provide that if a Veteran was exposed to an herbicide agent during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Veterans who served in certain military units along the Republic of Korea’s demilitarized zone (DMZ) in areas that are known to have been treated with herbicide agent between April 1968 and August 1971 are presumed to have been exposed to these certain herbicidal agents. 38 C.F.R. §§ 3.307(a)(6)(iv). The Veteran served in Korea during the period outlined in 38 C.F.R. § 3.307(a)(6)(iv). See service personnel records (SPRs). While the Veteran’s assigned unit is not listed among those as having been exposed to herbicide agents, he may nevertheless establish such exposure on a direct, facts-found basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). CAD and DM are two of the presumptive diseases listed in the statute and regulation. See 38 U.S.C. § 1116(a)(1)(H); 38 C.F.R. § 3.309(e). The dispositive issue in this case is whether the Veteran’s duties placed him at or near the Korean DMZ, thus establishing his exposure to herbicides. The Veteran worked as a military policeman in Korea in 1971. He had special training in criminal investigations and drug abuse, and he had top secret clearance. See DD Form 214s; SPRs. The Veteran stated that his missions operated in secrecy. See November 2009 Veteran statement. Psychologist P.L.’s August 2006 and July 2007 letters stated that the Veteran had special training in investigations, was assigned to a drug trafficking unit in Southeast Asia, and had investigations in Vietnam, Cambodia, Thailand, and Laos. The Veteran competently stated he was along the DMZ working at three stations and that his job took him to all points in Korea. See April 2008, July 2009, and October 2009 Veteran statements; January 2012 correspondence. The Veteran also competently stated that he had duties at Panmunjom, Korea, location where he would maintain security. See September 2008 Veteran statement. The record includes various maps noting the close proximity of Panmunjom to the DMZ. July 2011 DPRIS response noted that the Veteran’s headquarters was located at Camp Spade, approximately 26 miles from the DMZ, but that they were unable to document the use of herbicide agents or specific duties performed by the unit members along the DMZ. There is no affirmative evidence to explicitly contradict the Veteran’s reports of being at or around the Korean DMZ. The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In addition, the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). Neither the lay statements nor the service records definitively demonstrate whether the Veteran’s duties placed him at or near the Korean DMZ. However, both, when combined with the fact that the Veteran’s reports are generally consistent with the information contained in his service records, are persuasive indicators that the Veteran’s duties placed him at or near the Korean DMZ, as he claims. As the Veteran’s lay statements are both competent and credible in this regard, the evidence is at least approximately balanced on these questions at issue. Such doubt must be resolved in favor of the Veteran. Therefore, the Veteran’s duties placed him near the Korean DMZ. 38 U.S.C. § 5107(b); see also 38 C.F.R. § 3.102. Thus, for purposes of this decision only, the Board finds that the Veteran was exposed to herbicide agents on a facts-found basis. As the Veteran has been diagnosed with CAD and DM and these disabilities are presumed service connected in Veterans who were exposed to herbicide agents, entitlement to service connection for CAD and DM is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel 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.