Citation Nr: 21021882 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-24 239 DATE: April 14, 2021 ORDER Entitlement to service connection for ischemic heart disease, diagnosed as coronary artery disease and congestive heart failure, is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during the course of his service in Thailand. 2. Ischemic heart disease may be presumed under law to have been caused by herbicide exposure during service. 3. Diabetes mellitus, type II, may be presumed under law to have been caused by herbicide exposure during service. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, diagnosed as coronary artery disease and congestive heart failure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Unites States Air Force from February 1969 to September 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned in January 2021. A transcript of the proceeding is of record. Service Connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus and some types of heart disease, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307 (d). In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304. In this case, the Veteran’s military personnel record shows that he was stationed at Korat Royal Thai Air Force Base from October 1971 to September 1972. The Veteran asserts he was exposed to herbicides during this time-period. Herbicide Exposure The Veteran asserts that he was exposed to herbicides such as Agent Orange while he was stationed at Korat Royal Thai Air Force Base in Thailand. He contends that his ischemic heart disease and diabetes mellitus were caused by herbicide exposure during service, and requests that the VA apply the herbicide presumptions accorded to Veterans who served in Vietnam to his situation. The AOJ found that herbicide exposure in service was not shown and denied these claims. As his only theory of entitlement is herbicide exposure, this aspect of the claims must be addressed first. Although Vietnam era Veterans who served in Thailand are not eligible for the established regulatory presumptions of exposure to herbicides, they are nevertheless entitled to a presumption of service connection for herbicide-related conditions if they demonstrate actual exposure to herbicides. 38 C.F.R. § 3.307; Haas v. Peake, 525 F3d 1168, 1197 (Fed. Cir. 2008) overruled on other grounds. VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. In governing manuals and procedures, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand. The herbicide use was intended to eliminate vegetation and ground cover for base security purposes. VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure in these cases. For Veterans who served in Thailand during the Vietnam era who were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise was near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence; herbicide exposure should be acknowledged on a facts-found or direct basis. These provisions apply only during the Vietnam era. The Board must also consider lay statements and other evidence when determining whether a Veteran had exposure to herbicide agents in Thailand. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep’t of Veterans Affairs, Washington, D.C.), May 2010, at 3). In evaluating claims for service connection, due consideration shall be given to the places, types, and circumstances of a Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, the Veteran’s service medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Veteran’s DD Form 214 shows that he had one year of foreign and/or sea service with the 469th Tactical Fighter Squadron of the Pacific Air Forces. Other military personnel records confirm he was stationed at Korat Royal Thai Air Force Base. During the January 2021 hearing on appeal, the Veteran testified that he was frequently on the perimeters of the base. He testified that the area he was required to meet every morning, and the area around the flight line, where he worked installing survival kits in F-4s, were sprayed with herbicide. He used the fields and track which were in the spray drift zone, and he submitted a map showing these areas. He also indicated he was stationed at Clark Air Force Base in the Philippines for jungle survival school, prior to his arrival at Korat. Upon careful review of the evidence of record, to include the Veteran’s credible hearing testimony and written statements, the Board concludes that the Veteran’s exposure to herbicides during his service in Thailand is established. The Veteran has submitted maps of Korat and additional information showing that he was present in areas recognized as within the drift zone for herbicide spraying and identified living in the Airman & NCO living quarters located next to the perimeter. Having affirmatively found herbicide exposure during service, we may proceed to evaluate the Veteran’s claims of service connection for disabilities he claims are related to such exposure. 1. Ischemic heart disease The Veteran carries current diagnoses of ischemic heart disease, diagnosed as coronary artery disease and congestive heart failure. Ischemic heart disease is presumed under law to have been caused by herbicide exposure. Thus, service connection for ischemic heart disease, diagnosed as coronary artery disease and congestive heart failure, is warranted. (continued on the next page) 2. Diabetes mellitus, type II The Veteran also carries a diagnosis of diabetes mellitus, type II, which is presumed under law to have been caused by herbicide exposure. Thus, service connection for diabetes mellitus, type II, is also warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.