Citation Nr: 22017678 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-54 100 DATE: March 25, 2022 ORDER The petition to reopen a previously denied claim for service connection for heart disease is granted. Entitlement to service connection for ischemic heart disease due to herbicide agent exposure is granted. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a cerebrovascular accident (CVA), claimed as a stroke secondary to ischemic heart disease, is remanded. FINDINGS OF FACT 1. In an unappealed March 2012 rating decision, the RO denied service connection for ischemic heart disease and residuals of a heart attack. 2. In an unappealed October 2015 rating decision, the RO denied reopening service connection for ischemic heart disease and residuals of a heart attack. 3. The additional evidence received since the October 2015 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for a heart disability. 4. The Veteran is currently diagnosed with ischemic heart disease. 5. The evidence of record is in relative equipoise as to whether the Veteran was exposed to herbicide agents during his active service in Thailand during the Vietnam era. 6. Resolving any reasonable doubt in his favor, the Veteran's diagnosed hypertension is etiologically related to his established exposure to herbicide agents during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a heart disability. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2021). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for ischemic heart disease as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from rating decision dated in October 2017 of a Department of Veterans' Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. As will be discussed in further detail below, the Board herein reopened the service connection claim for a heart disability and expands the heart claim to include not only ischemic heart disease but also hypertension. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence Rating decisions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a Notice of Disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly received evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). By way of background, in March 2012, the RO determined that there was no objective evidence to corroborate the Veteran's statement of exposure to herbicides during service, that ischemic heart disease was not diagnosed during service or within one year of service discharge and that the information required to corroborate herbicide exposure was insufficient to send to US Army and Joint Services Records Research Center or to allow for additional research. In March 2012, the RO denied service connection for ischemic heart disease and residuals of a heart attack (ischemic heart disease). The Veteran did not appeal the March 2012 rating decision, nor was new and material received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). The Veteran petitioned to reopen his claim for service connection for ischemic heart disease in August 2015. In October 2015, the RO denied the petition to reopen the claim for service connection for ischemic heart disease. The Veteran did not appeal the October 2015 rating decision, nor was new and material received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). The Veteran petitioned to reopen his claim for ischemic heart disease in September 2017. In October 2017, the RO denied the petition to reopen the claim. The Veteran appealed the denial and the instant appeal ensued. Based on the procedural history as reflected above, the October 2015 rating decision is the last final decision regarding ischemic heart claim. Thus, the question before the Board is whether the evidence received after the final October 2015 rating decision is new and material, as defined above. The evidence of record at the time of the October 2015 rating decision consisted of the Veteran's September 2011 and August 2015 claims for compensation, lay assertions, service treatment records (STRs), service personnel records, post-service VA treatment records, post-service private medical records, a map of the air force base in Thailand, a response from the National Personnel Records Center (NPRC), multiple VA memorandums of a formal finding of lack of information to corroborate herbicide exposure for this veteran, a VA memo of Herbicide use in Thailand during Vietnam Era, and a YouTube link to a video of service members purporting to be performing military duties similar to shoe he performed in Thailand and showing the proximity in which they were working near "killed" vegetation. In October 2015, the RO determined that the evidence was not new and material because it did not establish a fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The evidence received since the October 2015 rating decision includes the Veteran's lay assertions, hearing testimony of the Veteran and his spouse, a buddy statement, military personnel record, a map of the air force base, post-service private medical records, and a document titled 'Chronology of Herbicides in Thailand." This evidence, which shows the location where the Veteran worked on the Air Force base and contains statements regarding the vegetation of the location where the Veteran worked on the Air Force base, relates to the unestablished element of whether he was exposed to herbicides in Thailand during service. The additional evidence received was not previously considered and is therefore new, in addition to being material. The service connection claim for a heart disability is reopened. Reopened Heart Claim The Veteran asserts that his heart disability is due to active service. Specifically, the Veteran has claimed that his heart disability is due to herbicide agents that he was exposed to while on active duty with the U.S. Air Force at the Royal Thai Air Force Bases in Korat, Thailand and Takhli, Thailand. As an initial matter, the Veteran currently has a diagnosis of heart disease, including coronary artery disease (a form of ischemic heart disease), atherosclerotic cardiovascular disease, and a history of myocardial infarctions in 1996 and 2010. See August 2015 VA Heart Conditions DBQ. He is also diagnosed with hypertension. See Clemons, supra. As such, the first criteria for entitlement to service connection is met for the claimed disability. Certain conditions are considered chronic, per se, including ischemic heart disease and hypertension, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree within a year of the veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, was exposed to an herbicide agent therein, certain diseases, including ischemic heart disease and hypertension, shall be presumptively service connected if they manifest to a degree of 10-percent disabling or more at any time after service. 38 C.F.R. § 3.307 (a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumptive provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam or other specified locations during the Vietnam era such as in Thailand. 38 C.F.R. § 3.307 (a)(6). The Veteran does not contend that he served in, stepped foot in, or was within 12 nautical miles of the Republic of Vietnam during service. The crux of the Veteran's claim involves whether he was exposed to herbicide agents while stationed in Thailand. VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam era. VA has determined 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 Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." 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. Most troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases (RTAFBs) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases 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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam era from February 28, 1961, to May 7, 1975. If a veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). See also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). In this case, the service personnel record confirms that the Veteran served at the Korat Royal Thai Air Force Base in Thailand from August 1969 to October 1969 and at Takhli Royal Thai Air Force Base in Thailand from approximately October 1969 to August 1970, so during the Vietnam era. While stationed at Korat, the Veteran served as Weapons Loader and Lead Crew Member, and while stationed at Takhli, the Veteran served as an F-105 Weapons Mechanic for his military occupational specialty (MOS). The Board will focus on his duties at Takhli RTAFB as the Veteran provides specific evidence in support of the contention that he was exposed to herbicide agents at that location. The Veteran was not a security policeman, security patrol dog handler, or member of a security police squadron during service. An F-105 Weapons Mechanic is not an MOS presumed to have been performed at or near an air base perimeter. Thus, the question of herbicide exposure must be based on other credible evidence on a facts-found basis. Correspondence from the Veteran dated in September 2017 indicates that the Veteran's primary service duty placed him on the runway at Takhli, the end of the runway and trim pad. He stated that he loaded bombs and was on the trim pad where he removed safety pins from the bombs to activate them. He asserted that the map he submitted shows the close proximity of the flight line to the perimeter and that herbicides were used at that location. He also stated that the main and secondary gates were located on the perimeter and coming and going off the base placed him at the perimeter. The Veteran also submitted a detailed map of Takhli Royal Thai Air Force Base, which is outlined in color, showing the location of the runway, the perimeter, the trim pad, and the approximate distance between end of the runway and perimeter. The Board notes that the trim pad is located at the end of the runway. In September 2017, the Veteran also submitted a "Chronology of Herbicides in Thailand" which includes references to spraying of herbicides and the use of herbicides in Thailand prior to the time the Veteran was there and in other locations of Thailand. A September 2017 statement from C. W. Perry, indicates that he was crew chief and served with the Veteran at Takhli. He stated that the Veteran was located at the end of the runway for "last inspection" of the aircraft and bombs and missiles loaded thereon, which put him close to the perimeter where herbicides were sprayed. He added that the thrust of the engines kicked up the dirt over the servicemen and the vegetation at the end of the runway was brown and had no plant life. The Veteran was given a Board hearing before the undersigned in January 2021. During the hearing, the Veteran and his spouse testified that he worked on the flight line and at the "bomb dump" that was located about 50 yards from the perimeter, daily, for 12-hour shifts. The Veteran confirmed that he witnessed chemicals being sprayed on the lake and the foliage from a truck near him, and that the vegetation was dead. The Veteran is competent to report that which he experienced in service, including the duties associated with his MOS, as well as his daily routine. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Although the record on appeal in this case does not contain specific documentation of perimeter duty assignments at the Takhli RTAFB, the Board finds the Veteran's accounts competent and credible evidence that his MOS led him regularly to the perimeter of the base where herbicide agents are known to have been used or stored. See 38 U.S.C. § 1154(a) (explaining that, in deciding a claim, VA adjudicators must consider the circumstances, conditions, and hardships of a Veterans' service). His descriptions are consistent with the circumstances of his service, as well as those of his fellow serviceman. The Board notes further that there is no evidence of record that contradicts his claims of perimeter contact. Consequently, the Board finds in relative equipoise the evidence in favor and against the required exposure to herbicide agents in service. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) ("[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."). Accordingly, the Board finds that the Veteran was exposed to herbicide agents during his service at Takhli RTAFB during the Vietnam era. As indicated above, ischemic heart disease is presumed to be associated with herbicide agent exposure. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Therefore, the Board resolves all reasonable doubt concerning this in his favor and grants the claim for service connection for ischemic heart disease, as due to herbicide exposure. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for hypertension The Veteran has a diagnosis of hypertension dating from April 2008. See Medical Treatment Record Government Facility, received May 22, 2009. As noted above, the Veteran's exposure to herbicide agents during the Vietnam era has been established. The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a possible association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). The Board notes that the NAS serves as an advisor on scientific matters and is comprised of experts in the given field. The Board finds the NAS upgrade highly probative. In sum, the Veteran has a current medical diagnosis of hypertension and his exposure to herbicide agents in service has been established. As determined, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. The Board thus concludes that, at the very least, the evidence of a nexus is in equipoise. Accordingly, the Board, resolving any reasonable doubt in the Veteran's favor, finds that the criteria to establish service connection for hypertension are met. REASONS FOR REMAND Entitlement to service connection for a CVA as secondary to ischemic heart disease and/or hypertension. The Veteran contends that the CVA he suffered in July 2017 was the result of his ischemic heart disease due to a clot that formed in his heart. At the January 2021 hearing, the Veteran's spouse testified that when the stroke occurred in 2017, the doctors stated that the clot formed in his heart and then went into his brain. Medical records from Rapid City Regional Hospital, dated July to August 2017, show the Veteran was admitted in July 2017 due to a suspected stroke. Computerized tomography scans of the head, with and without contrast, were obtained showing an acute ischemic left MCA stroke. The clinical impression was CVA with right hemiparesis and left carotid thrombosis. A medical opinion addressing whether the now service-connected ischemic heart disease caused or aggravated the Veteran's CVA is needed. The matter is REMANDED for the following action: 1. Obtain a medical opinion as to the nature and etiology of the Veteran's CVA. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. All clinical findings must be reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) State whether it is at least as likely as not (i.e., an approximate balance of evidence) that the Veteran's acute ischemic stroke is proximately due to, or the result of, the Veteran's service-connected ischemic heart disease and/or hypertension. (b) Provide an opinion as to whether it is at least as likely as not (i.e., an approximate balance of evidence) that the currently diagnosed stroke disorder was aggravated by the Veteran's service-connected ischemic heart disease and/or hypertension. ** In providing the opinions, the examiner is to consider and discuss: (i) the medical records from Regional Heart Doctors dated in March 2015 for consideration of ICD placement, and (ii) the medical records from Rapid City Regional Hospital dated July to August 2017, noting a CVA with right hemiparesis and left carotid thrombosis. See September 26, 2017 Medical Treatment Record Non-Government Facility. The examiner is advised that for secondary service connection, "aggravation" need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). In rendering the opinion, the examiner should consider the competent reports of the Veteran and his spouse. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects their reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's and his spouse's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner should provide a complete medical explanation for the conclusions reached. (Continued on the next page) 2. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.