Citation Nr: A22025872 Decision Date: 12/20/22 Archive Date: 12/20/22 DOCKET NO. 211118-198315 DATE: December 20, 2022 ORDER Service connection for ischemic heart disease, to include as due to exposure to herbicides in the Philippines, is denied. FINDING OF FACT The Veteran's ischemic heart disease did not have onset in service or within a year of service and is not otherwise related to service, to include alleged exposure to Agent Orange at Clark Air Force Base in the Philippines. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1960 to July 1968, to include service at Clark Air Force Base (AFB) in the Philippines. This matter comes before the Board of Veterans' Appeals (Board) from a November 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2022, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of that hearing is associated with the claims file. Under the hearing option, the Board only may consider the evidence of record at the time of the appealed rating decision as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §20.302(a). SERVICE CONNECTION The Veteran contends that he has a current diagnosis of ischemic heart disease due to exposure to herbicides at Clark AFB in the Philippines. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303. Service incurrence for certain diseases, including ischemic heart disease may be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. As background, the Veteran initially filed a claim for ischemic heart disease in June 2010. The Veteran's service treatment records (STRs) do not contain evidence of heart complaints or issues. A March 2010 private treatment note indicated the Veteran had complaints of chest pain, received a heart cauterization, and was discharged with a diagnosis of ischemic heart disease. Development revealed that the Veteran did not serve in the Republic of Vietnam and, therefore, the claim for service connection was initially denied in a December 2010 rating decision. In his December 2011 notice of disagreement, the Veteran stated he was stationed at Clark AFB in the Philippines from January 1961 to August 1963 and Travis AFB in California from January 1966 to July 1968 and that these were transshipment points to South Vietnam for hundreds of barrels of Agent Orange chemicals. He explained that during his service career, his specialty code was that of an Air Transportation Specialist with duties that included unloading trucks, and warehousing, storing, loading, and unloading of cargo aircraft. During the performance of those duties, he stated that he handled numerous 55 gallon barrels of Agent Orange, many of which were leaking from loose bung plugs. He stated that the Air Force did not provide or require protective clothing be used when handling hazardous cargo, such as Agent Orange. The RO referred the claims file to the Joint Services Records Research Center (JSRRC) coordinator who determined that the information provided to corroborate the Veteran's alleged exposure to herbicides was insufficient to send to the JSRRC or to allow for meaningful research of National Archives and Records Administration (NARA) records. The VA memorandum recognized that in an earlier August 2004 VA form 21-526, Veteran's Application and/or Pension, he checked "no" regarding exposure to herbicides. It was noted that a review of the public health documentation including "Herbicide Tests and Storage in the U.S." and "Information from Department of Defense (DoD) on Herbicides Tests and Storage outside of Vietnam" do not show that herbicides were stored or used at Clark AFB in the Philippines or at Travis AFB in California. In his November 2012 VA Form 9, the Veteran stated that although it may be true that Agent Orange barrels were not stored at Travis or Clark Air Bases, his allegation was that Agent Orange was shipped through those air bases and that he was required to regularly handle such cargo. He stated again that the barrels were frequently leaking. In January 2017, the Veteran testified at a Board hearing that he loaded 55 gallon black barrels with orange stripes on them. He believed these were barrels of Agent Orange. He stated that some of the barrels came in with the bungholes at the top loose and material would splash and slush around and he would tighten the bungholes back down and wipe the excess material off. He stated this first occurred in the Philippines and again while he was stationed in California. In a July 2017 decision, the Board denied the claim finding that due to the lack of in-country Vietnam service, and the findings of the JSRRC coordinator, the herbicide presumptions did not apply to the Veteran's case. In addition, the Board concluded that the Veteran's mere allegation of in-service herbicide exposure, during an attempt to obtain compensation benefits, does not counter the findings of regularly maintained records which are kept in the course of business they reflect. The Board found no competent evidence from the Veteran or otherwise in the record indicating that the Veteran experienced an in-service injury or event that led to his current diagnosis of ischemic heart disease. Thereafter, in September 2019, the Veteran filed a Supplemental Claim seeking to reopen the claim for heart disease due to exposure to herbicides while serving at Clark AFB and in the Philippines generally. In an accompanying statement in support of claim, the Veteran repeated his contention that herbicides used in Vietnam were transported through Clark AFB. He submitted several pages from the Office of Air Force History entitled Operation Ranch Hand - Air Force and Herbicides in Southeast Asia, 1961 to 1971. These pages indicate that six Operation Ranch Hand C-123 aircraft stopped at Clark AFB between November and January 1961 and then continued to South Vietnam. In the November 2019 rating decision, the RO found new and relevant evidence had been received and reconsidered the claim, but denied it because the evidence did not show service in Vietnam or Thailand and the Veteran had not given a 60 day time frame to allow research of alleged herbicide exposure in the Philippines. In December 2019, the Veteran filed a Request for Higher Level Review arguing that the November 2019 rating decision did not address the Veteran's contention that as a cargo handler at Clark AFB in the Philippines, he loaded and unloaded barrels of Agent Orange, Agent Blue and other herbicides and the rating decision did not mention the evidence regarding Operation Ranch Hand. In a March 2020 rating decision, the RO denied the claim again stating that the Operation Ranch Hand report only discussed the flight path of Operation Ranch Hand C-123 aircraft and does not suggest or provide official evidence that barrels of Agent Orange arrived at Clark or Travis air bases or that Agent Orange testing occurred there. In a July 2021 rating decision, the AOJ indicated that a special review was mandated by the federal court order in Nehmer v. Department of Veterans Affairs. In the rating decision, the AOJ again denied the claim based on an inability to concede exposure to herbicides. In an August 2021 statement in support of claim, the Veteran stated he was stationed at Clark AFB in the Philippines from approximately February 1961 to December 1961 during which time Agent Orange and other herbicides were tested and that the planes that flew the testing runs originated from Clark AFB. He stated he was also at Clark AFB for Operation Ranch Hand and Air Force C-123 aircraft departed from Clark AFB equipped with sprayers and Agent Orange and flew to Vietnam. He again alleged that he loaded and unloaded barrels of Agent Orange that leaked and that herbicides saturated his clothing on occasion. In October 2021, the RO sent a letter to the Veteran indicating evidence was needed showing he was exposed to Agent Orange through regular and repeated duties flying or maintaining contaminated former Operation Ranch Hand (ORH) C-123 aircraft used to spray Agent Orange in Vietnam. It was explained that this applied to Air Force veterans who served between 1969 through 1986 (varies with unit of assignment) in an area where ORH C-123 aircraft were conducting such operations. The Veteran did not respond to this correspondence. A November 2021 rating decision denied the claim again and the Veteran appealed this decision to the Board on the Hearing Docket. At his September 2022 hearing, the Veteran stated he served at Clark AFB in the early 1960s as a freight handler offloading airplanes and warehousing the cargo that came in on those airplanes. He testified that the original C-123 aircraft for Operation Ranch Hand arrived at Clark AFB in December 1961 where they were held until they had permission to proceed onto Vietnam. He stated that from his memory that is where the barrels of herbicides came into Clark AFB for staging prior to going into Vietnam. He testified that he did not know what the barrels aboard the C-123 aircraft contained. He stated he remembered white and blue markings, which he later learned indicated the type of herbicides contained in them. He stated he handled these barrels both off-loading them off the airplanes and warehousing them in the warehouse pending further move. He stated that the majority of the barrels leaked. He reported that he mopped up the leakage with his bare hands. He alleged that in January 1962, the first load of herbicides arrived at Vietnam from preposition stops at Clark AFB. He clarified that he moved barrels off of C-124 and C-130 aircraft. The Veteran referenced the internet article regarding Operation Ranch Hand. The Judge made clear that information was needed regarding the Veteran's personal experiences and not necessarily what was written in the article. The Veteran confirmed his belief that he participated in some way with Operation Ranch Hand and that he was exposed to herbicide agents in doing so. The Veteran stated that he did not have symptoms of a heart condition prior to suffering a heart attack and receiving a diagnosis of heart disease in 2010. Within the evidentiary window, the Veteran submitted the entire Operation Ranch Hand The Air Force and Herbicides in Southeast Asia, 1961-1971 article. Initially, the Board notes that the Veteran has not argued, and the evidence does not show, that the Veteran's diagnosed ischemic heart disease began in service or proximately thereafter. In this regard, the Veteran's service treatment records are absent for findings or diagnoses of cardiac disorders, to include ischemic heart disease, and the Veteran was initially diagnosed with heart disease in March 2010, approximately 42 years post-service. Accordingly, the Board finds that there is no in-service incurrence. Moreover, the Board finds that presumptive service connection for chronic conditions is also not warranted for the Veteran's ischemic heart disease as the condition was not diagnosed in-service or within one-year following service. Regarding the Veteran's contentions regarding Operation Ranch Hand and exposure to herbicides at Clark AFB in the Philippines, effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. For purposes of the regulation, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. 38 C.F.R. § 3.307(a)(6)(v). A review of the Federal Register reveals that only some C-123s were used to actually spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(6)(v) is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. This distinguishes C-123 aircrafts from other planes. VA has published a list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand C-123 aircraft, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. That list includes the 405th unit assigned to Clark AFB in the Philippines from 1969 to 1970. The Veteran's official service personnel records, including his DD-214, show that his military occupational specialty (MOS) was as an Air Freight Specialist from July 1960 to July 1964 and Air Transportation Supervisor from July 1964 to July 1968. He served at Clark AFB between 1961 and 1962. The Veteran's active duty service was prior to the dates necessary to qualify him for the presumption related to herbicide exposure while working on C-123 aircraft as part of Operation Ranch Hand. In order to qualify as having worked regularly and repeatedly operating, maintaining, or serving onboard C-123 aircraft while stationed at Clark AFB, the Veteran must have served at Clark AFB between 1969 and 1970. The Veteran separated from active duty service in July 1968. Therefore, the Veteran has not met the criteria for a presumption of herbicide exposure based on his service at Clark AFB. Additionally, the Board finds that the evidence of record is insufficient to demonstrate actual exposure to herbicide agents. While the report from Operation Ranch Hand - The Air Force and Herbicides in Southeast Asia, 1961-1971 confirms that modified for spraying C-123 aircraft flew to Clark AFB in September 1962 before spray operations resumed in South Vietnam, it also indicates that there was no documented evidence found from the official United States Air Force unit histories or the Aerospace Vehicle Inventory reports of Ranch Hand C-123 aircraft visiting Clark AFB while they were utilized in the Operation Ranch Hand mission of spraying tactical herbicides. In addition, the Veteran testified under oath that he worked with C-124 and C-130 aircraft which competent evidence does not reveal were contaminated by herbicides or used to transport herbicides during the Vietnam era. Based on the foregoing, the Board finds that the Veteran's assertions, without more, simply do not support the claim that he was, in fact, actually exposed to tactical herbicides in service. In light of the above, the Board finds that the Veteran was not exposed to herbicide agents, to include Agent Orange, during service and therefore, the criteria necessary to grant service connection for ischemic heart disease on a presumptive basis are not met. Although grateful for the Veteran's honorable service, the Board concludes that the evidence persuasively weighs against the claim and the benefit of the doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). G. William Riggs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Iwanowski, 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.