Citation Nr: 21029963 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-04 660A DATE: May 17, 2021 ORDER Service connection for coronary artery disease (CAD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depression, is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service in Thailand. 2. The Veteran's currently diagnosed CAD disability is presumed to be related to in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria to establish service connection for CAD are met. 38 U.S.C. § 1110, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2014 and June 2015 by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran had a Board hearing before a different Veterans Law Judge (VLJ); however, a written transcript of the proceeding could not be produced due to technical difficulties. The RO notified the Veteran of the audio malfunction and informed him of an opportunity to testify at another hearing. The Veteran responded and requested another hearing before a VLJ. In March 2021, the Veteran and his spouse testified before the undersigned VLJ. A hearing transcript is of record. Normally, when two different VLJs hold hearings on the same case, the Veteran is afforded a panel hearing. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, where, as here, a second hearing is held because the original hearing was not recorded in whole or in part due to equipment failure or other cause, a panel hearing is not necessary. See 38 C.F.R. § 20.717; see also Chairman's Memorandum 01-11-10. Instead, the original hearing is treated as if it did not exist, and only the VLJ who presided over the second hearing will decide the claim. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Coronary Artery Disease (CAD) The Board notes that certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). 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. 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. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.309 (e), presumptive service connection based on Agent Orange exposure is available for ischemic heart disease (also known as coronary artery disease). The Veteran in this case maintains that his currently diagnosed CAD is related to in-service herbicide exposure while serving in Thailand. Specifically, he contends that he was exposed to herbicide agents while serving as an electrician on Karot Air Force Base. He indicated that his duties required him to travel often near the perimeter of the base where herbicides were used to control vegetation. His duties required him to service all the lights along the perimeter of the base. See Board Hearing Transcript at pg. 3. The available personnel records confirm that the Veteran was attached to the 430th Tactical Fighter Squadron at Takhli Royal Thai Air Force Base from September through December 1962. His DD Form 214 confirms that he was in the 832nd transportation squadron and served as a vehicle operator Service personnel records show that on May 15, 1970, the Veteran was serving at APO 96233 (Korat) Royal Thai Air Force Base in Thailand. He was in Thailand from January 11, 1970 to June 26, 1970. His DD Form 214 confirms that his Miliary Occupation Specialty (MOS) was as an electrician. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran's statements that he was required to work near the perimeter of the airfield/base to be credible evidence of such exposure. Therefore, the Board finds that based on the Veteran's competent and credible lay statements regarding his responsibility as an electrician servicing the lights of the base near and around the perimeter as a part of his duties while serving in Thailand, all reasonable doubt should be resolved in his favor and it is at least as likely as not that he meets the criteria for conceding exposure to an herbicide agents during active military service in Thailand. The remaining inquiry is whether the Veteran currently has the claimed CAD. The RO has conceded that the Veteran has been diagnosed with CAD. VA treatment records also show that the Veteran has been diagnosed with CAD during the appeal period. See e. g., April 2015 and May 2017 VA treatment records. Resolving any doubt in the Veteran's favor, his exposure to herbicide agents in Thailand during the Vietnam Era has been conceded. Accordingly, service connection for CAD is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Psychiatric Disorder VA treatment records show diagnoses of PTSD, major depressive disorder with anxiety. See November 2014 VA mental health note. During the March 2021 Board hearing, the Veteran's representative indicated that the Veteran's depression and anxiety could be related to his now service-connected CAD disability. See id at pg. 10. Alternatively, the Veteran maintains that his psychiatric disorder may be related to in-service stressor events while service in Thailand. Specifically, the Veteran has stated that he witnessed a little girl being shot and killed on the road toward his base in Thailand. He indicated that he began having symptoms (inability to sleep and nightmares) soon after the event. The Veteran has not been afforded a VA examination regarding his psychiatric disorders, to include whether they are, at least in part, due to service or to his service-connected disability. As such a remand is required. McClendon v. Nicholson, 20 Vet. App. 79 (2006). SMC based on Aid and Attendance During the March 2021 Board hearing, the Veteran's spouse indicated that the Veteran relied on her to maintain activities of daily living, primarily due to his now service-connected CAD disability. See id at pgs. 8-9. The Board notes that the Veteran has not been afforded an Aid and Attendance examination. Accordingly, this matter must be remanded so that the Veteran can be afforded a VA Aid and Attendance examination. 38 U.S.C. § 5103A (d). The Veteran's claim for SMC based on the need for aid and attendance is also inextricably intertwined with the claim for service connection for a psychiatric disorder which is being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disability. Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should address the following: (a.) List all psychiatric diagnoses pertaining to the Veteran. (b.) If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. (c.) For each diagnosis, state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's psychiatric disability was incurred in service or is otherwise causally related to the Veteran's active service. (d.) State whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's psychiatric disability was caused or aggravated by his service-connected coronary artery disease disability. ** Please note that for secondary service connection, "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (e.) The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. 3. Schedule the Veteran for an aid and attendance examination to assess the Veteran's functional impairment due to his service-connected disabilities. The examiner should review the entire claims file and the report of examination should include discussion of the Veteran's documented history and assertions. (a.) The examiner is to consider the following: the inability of Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; the inability of the Veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; and the incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. (b.) The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. (Continued on the next page) 4. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.