Citation Nr: 21026638 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-11 588 DATE: May 3, 2021 ORDER Entitlement to service connection for arteriosclerotic heart disease (coronary artery disease), to include as a result of in-service exposure to herbicide agents, for accrued purposes, is granted. Entitlement to service connection for hypertension, to include as a result of exposure to herbicide agents and secondary to service-connected diabetes mellitus, type II, for accrued purposes, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, he developed coronary artery disease as a result of herbicide agent exposure while serving in Thailand. 2. The evidence is in relative equipoise regarding whether the Veteran's hypertension is due to his herbicide agent exposure or related to his diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for arteriosclerotic heart disease (coronary artery disease), to include as a result of exposure to herbicide agents, for accrued purposes, are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension, to include as a result of exposure to herbicide agents and secondary to diabetes mellitus, type II, for accrued purposes, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1953 to April 1973. The Veteran died in June 2018. The Appellant is his surviving spouse. This appeal arose from a November 2017 rating decision. In March 2019, the Board dismissed the claims due to the Veteran's passing. The Appellant was properly substituted into the appeal. In June 2019, the Board remanded the claims for further evidentiary development. In February 2020, the Board denied these claims. The Appellant appealed the Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision and remanded it back to the Board for further development in October 2020, pursuant to a Joint Motion for Remand (JMR). Service connection for arteriosclerotic heart disease (coronary artery disease), to include as a result of exposure to herbicide agents The Appellant seeks service connection for the Veteran's heart disease. The evidence of the record establishes that the Veteran has been diagnosed with ischemic heart diseaseand, specifically, coronary artery disease. During the lifetime, he contended that he developed heart disease due to herbicide agent exposure while stationed in Thailand. With respect to presumptive service connection for claims based on the theory of exposure to herbicide agents, the record shows that the Veteran had been diagnosed with ischemic heart disease (coronary artery disease), which is the disease listed under 38 C.F.R. § 3.309(e). However, under 38 C.F.R. § 3.307(a)(6), the presumption of service connection with respect to the Veteran's ischemic heart disease (coronary artery disease) only applies to veterans who had the requisite service in the Republic of Vietnam or in or near the Korean DMZ. Although the Veteran served during the Vietnam era, the record does not establish he served in the Republic of Vietnam or in or near the Korean DMZ during that time. Based on the evidence of record, the Veteran may not be presumed to have been exposed to herbicide agents in service under 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.309(e). See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Thus, without the requisite service, the Veteran's claims are not entitled to the presumptive requirements promulgated by 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). That notwithstanding, the Veteran is not precluded from establishing service connection for ischemic heart disease with proof of actual direct causation, i.e., showing that he was directly exposed to herbicides during service, which, in turn, caused his ischemic heart disease (coronary artery disease). Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). Moreover, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." As such, VA extends a special consideration of exposure to herbicides on a facts-found or direct basis to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This special consideration provides that herbicide exposure may be conceded on a direct or facts-found basis, which allows such Veterans to establish actual exposure to herbicides in service. Such special consideration applies if the Veteran served with the United States Air Force in Thailand during the Vietnam era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat; and served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his MOS, performance evaluations, or other credible evidence. In this case, the service personnel records establish that the Veteran served in Thailand on the U-Tapao and Udorn RTAFBs during the Vietnam Era (August 1969 to August 1970 and September 1971 to October 1972). During that time, the Veteran worked as an aircraft maintenance technician and a maintenance scheduling technician with the 432nd Tactical Reconnaissance Wing on the Udorn RTAFB and production control scheduler in the 307th Munitions Maintenance Squad on the U-Tapao Airfield. The Veteran's duties included processing items through the field maintenance shops, processing work requests for local manufacturing of aerospace equipment, monitoring product control boards, and scheduling maintenance necessary to meet scheduled mission commitments. The Veteran expressed that, while stationed in Udorn, he physically saw the results of Agent Orange, such as dead foliage. See November 2017 NOD. In an August 2017 VA Memorandum, a formal finding was determined that the Veteran's exposure to Agent Orange could not be verified. It was indicated that all procedures to verify the exposure were correctly followed and the efforts were associated with the claims file. See August 2017 VA Memo. After a thorough review and consideration of the evidence, the Board finds that it is plausible that the Veteran's MOS duties would place him on the perimeters of the Udorn and U-Tapao RTAFBs. Although his MOS is not one of the military occupations conceded to have been actually exposed to herbicides in Thailand, the Board finds his statements to be credible regarding his actual proximity to the perimeter of Udorn and U-Tapao RTAFBs. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Here, he has consistently reported that he was exposed to herbicides during his service in Thailand as a result of his MOS duties. His contentions regarding his proximity to the perimeter while stationed at the Air Force bases are supported by his own personnel records. His military duties appear to have largely involved working with aircraft and other associating equipment. It is reasonable to believe that he would spend most of his time working on the flight line and perimeter of the bases. There is no evidence of the record that would contradict these contentions and supporting evidence. Affording the benefit of the doubt to the Veteran and Appellant, the Board determines that the record evidence establishes that he performed his duties near the perimeter of the Udorn and U-Tapao RTAFBs and was likely exposed to herbicide agents while stationed in Thailand. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Therefore, his direct exposure to herbicides may be conceded on a factual basis. As such, an in-service injury, i.e.his exposure to herbicidesis established. Lastly, based on the Veterans and Agent Orange: Update 2008 (Update 2008), issued by the National Academy of Sciences (NAS) and consideration of the medical and scientific data contained therein, the Secretary of VA determined that there is a positive association between exposure to herbicides and ischemic heart disease. See 75 FR 53,202 (Aug. 31, 2010) (Ischemic Heart Disease); see generally Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (explaining that NAS's statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent medical evidence that VA may "consider when assessing whether the totality of the evidence is sufficient to establish direct service connection"). Accordingly, the Board finds it reasonable to conclude that the record evidence, together with the findings by the NAS, supports a direct relationship between the Veteran's in-service exposure to herbicides and his subsequent development of ischemic heart disease (coronary artery disease). 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); Combee and Gilbert, both supra. Thus, resolving all reasonable doubt in the Veteran and Appellant's favor, entitlement to service connection for arteriosclerotic heart disease, for accrued purposes, is granted. Service connection for hypertension, to include as a result of exposure to herbicide agents and as secondary to diabetes mellitus, type II The Appellant seeks service connection for the Veteran's hypertension and, in so doing, asserts that this disability is the result of his now service-connected diabetes mellitus, type II. The evidence of the record establishes that the Veteran had a diagnosis of hypertension. Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In a February 2017 Disability Benefits Questionnaire (DBQ), the physician indicated that the Veteran's hypertension was due to, and aggravated by, his diabetes mellitus, type II. There was no further explanation provided. Medical records show the Veteran being treated for both his diabetes and hypertension. However, it does not explicitly show if the Veteran's diabetes has caused or aggravated his hypertension. The medical records do show that the physician who authored the February 2017 DBQ treated the Veteran at the West Plans VA Medical Center (VAMC) since 2016. Additionally, the Board is aware that hypertension is not among the diseases listed under 38 C.F.R. § 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee, supra. As explained above, the Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange, during his service. Now the Board will consider whether his conceded exposure to herbicide agents contributed in any way to his development of hypertension. The Board takes judicial notice of the existence of the finding by the NAS that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Veterans and Agent Orange: Update 11 (2018); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (regarding judicial notice); see generally Polovick, supra. When considering the 2018 NAS finding with the other medical and lay evidence of the record, to include the Veteran's treating doctor indicating a relationship between the Veteran's diabetes and his hypertension, the Board finds that a reasonable doubt has arisen regarding the initial onset of the Veteran's hypertension. The Board acknowledges that the evidence in this case is not explicitly clear in resolving the issue regarding the specific onset of the Veteran's hypertension. Significant time has been used to develop the evidentiary record in this matter in order to resolve the uncertainties. However, those uncertainties have not been resolved. Considering what has been proffered in the medical evidence, there is enough competent evidence to raise a reasonable doubt regarding the onset of the Veteran's hypertension. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established. In sum, the Board finds that the criteria for service connection have been met. Service connection for hypertension, for accrued purposes, is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.