Citation Nr: 22011995 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 20-09 527 DATE: March 2, 2022 ORDER Entitlement to service connection for ischemic heart disease is granted. FINDING OF FACT The Veteran has a current diagnosis of ischemic heart disease, and the evidence is in relative equipoise as to whether the Veteran worked on the perimeter of the base at U-Tapao Royal Thai Air Force Base in Thailand during the Vietnam era. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for heart condition. The RO issued additional rating decisions in August 2017 and March 2018 that continued the denial of service connection of heart condition because the RO found that there was no new and material evidence submitted. The Board finds that the November 2016 rating decision was not final as the Veteran continuously pursued his claim by timely expressing his disagreement as to that rating in July 2017. Therefore, the issue of whether new and material evidence has been received to reopen the service connection claim is not applicable. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In January 2022, the Veteran presented testimony at a virtual tele-hearing before the undersigned Veterans Law Judge. A transcript of that hearing will be associated with the record at a later time. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Entitlement service connection for ischemic heart disease. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to herbicides, such as Agent Orange; ischemic heart disease is among such diseases. 38 C.F.R. § 3.309(e). VA regulations provide that exposure to herbicides may be presumed for veterans who, in specified circumstances and during specific times, served in Vietnam or the Demilitarized Zone of Korea; or who operated, maintained, or served aboard certain U.S. Air Force aircraft. In this case, the Veteran does not argue, nor does the record show, that he served in Vietnam or Korea. Instead, his military service included service at U-Tapao Royal Thai Air Force Base (AFB) in Thailand. Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, per information from the Department of Defense, VA recognizes herbicide agents were used at certain times and places at some military bases in Thailand during the Vietnam Era. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016). The "Vietnam era" is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Despite the absence of a statute or regulation, VA has established procedures under which it will concede exposure to herbicide agents during service in Thailand but only if certain conditions are met. The Board is not bound by these VA procedures. Overton v. Wilkie, 30 Vet. App. 257, 263 (2018). Nevertheless, the Board adopts these procedures as the relevant standard to analyze the Veteran's claim. See Hudick v. Wilkie, 755 Fed. Appx. 998, 100507 (Fed. Cir. 2018). VA Compensation Service has determined that a special consideration of herbicide agent exposure on a factual basis should be extended to U.S. Air Force Veterans whose duties placed them on or near the perimeters of Royal Thai Air Force Bases during the Vietnam era, to include U-Tapao. If an Air Force veteran served on the base as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure will be acknowledged on a facts-found or direct basis. Otherwise, the procedures direct the VA Regional Office to ask the veteran for the approximate dates, location, and nature of alleged exposure to determine whether exposure to herbicide agents can be acknowledged on a direct or facts-found basis. The Veteran served on active duty in the United States Air Force from April 21, 1970 to November 6, 1973. According to his military records, he serviced on active duty at the U-Tapao AFB, Thailand from September 1972 to September 1973. Therefore, his service at U-Tapao AFB falls within the Vietnam Era. 38 U.S.C. § 101(29)(A). According to the Veteran's military records, while stationed at U-Tapao AFB, he was assigned to the 307th Field Maintenance Squadron as Aerospace Ground Equipment Vehicle Operator. This military occupation specialty (MOS) is not one of the identified occupations associated with service at the base's perimeter. Thus, the Board must review any additional evidence of record to determine whether the Veteran's duties otherwise placed him near the base's perimeter. In a November 2015 statement, the Veteran wrote that while he was stationed at U-Tapao AFB, he worked exclusively in the aircraft area and his office/dispatch building was in close proximity to the North/Northeast perimeter road. He contended that large quantities of Agent Orange were used as a deterrent to enemy attack in and around the aircraft revetments and maintenance areas where he worked every day on 12 hour shifts. He stated his duties included operating vehicles used in transporting AGE equipment to and from the flight lines. In February 2018, the Veteran submitted photographic images of the U-Tapao AFB and identified where his office/dispatch buildings were located in close proximity to the perimeter road. In January 2022, he provided a map and the AGE shop, aircraft parking area ("flight line") and perimeter security police guard towers on the north and northeast perimeter fence where he routinely delivered and serviced floodlights, which placed him near the perimeter of the base. He described his daily duties at U-Tapao involved delivering NF-2 flood lights to the aircraft maintenance crews on the flight line and to the security forces/security towers and other items to various locations along the perimeter of the base. He stated that the area around the AGE shop and the perimeter road were always defoliated and provided photographic images to that effect. The Board finds that the Veteran is competent to offer his lay statements about his experiences at U-Tapao, to include where he worked. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976) (witnesses may testify "upon concrete facts within their own observation and recollection that is, facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts."). The Board finds his statements are credible. In addition, the Veteran relies on a research report, entitled "Report to Congress, Inequities in Treatment of Vietnam Veterans, the Exclusion of Thailand Veterans," including a military article, "Operation Ranch Hand, The Air Force and Herbicides in Southeast Asia 1961-1971," about the use of herbicide agents in Thailand to support his position that herbicide agents were used at the perimeter of the base at U-Tapao AFB. Considering the evidence as a whole, the Board finds that it supports herbicide agent exposure as to the Veteran's duties at the U-Tapao AFB. The standard of proof is credible evidence, not corroborated evidence. Hudick v. Wilkie, 755 Fed. Appx. 998 (2018). The Veteran has provided specific statements about his service at U-Tapao AFB, specifically identifying the locations of work and building, and describing his daily duties that took him near the permitter of the base on a routine basis. He has gone beyond mere general assertions and offered statements that when viewed in light of the military articles he offered in support of his position make his statements credible and probative. There is no evidence on the other side of the scale. Therefore, consistent with VA procedural guidance, herbicide agent exposure is recognized due to the Veteran's military service at U-Tapao AFB based on his routine location and duties that placed him near the perimeter of the base. (Continued on the next page) Finally, in February 2018, the Veteran submitted a Heart Conditions Disability Benefits Questionnaire (DBQ) prepared by his private physician. The report notes a current diagnosis of chronic ischemic heart disease on a coronary artery angiogram dated January 31, 2018, status post percutaneous coronary intervention (PCI) with stenting to right coronary artery (RCA) and disease to left anterior descending artery (LAD). For the limited purpose of resolving this appeal, the Board assumes that the disease manifested to at least a degree of 10 percent. Moreover, there is no affirmative evidence to the contrary. Accordingly, service connection is warranted for ischemic heart disease on a presumptive basis under 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307, 3.309. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.