Citation Nr: 23001237 Decision Date: 01/09/23 Archive Date: 01/09/23 DOCKET NO. 19-04 272 DATE: January 9, 2023 ORDER Entitlement to service connection for coronary artery disease (CAD), as due to exposure to herbicide agents, is granted. FINDING OF FACT The Veteran experienced a layover in Da Nang, Vietnam at some date between June 27, 1967, and July 6, 1967. CONCLUSION OF LAW The criteria for presumptive service connection for CAD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's service connection claim for CAD was initially denied via a June 2014 rating decision. The RO determined that the evidence did not show that the Veteran had qualifying service in Vietnam to justify presumptive service connection based on exposure to herbicide agents. The Veteran did not submit an appeal or new evidence within one year, so this denial became final. In December 2016, the Veteran requested for his service connection claim to be reopened. He submitted lay testimony that he landed at an airfield in Da Nang, Vietnam, which he proposed should qualify him for presumptive service connection due to herbicide exposure. In March 2017, the RO issued another rating decision continuing the denial for CAD because the evidence submitted was deemed "not new and material." The Veteran submitted a timely appeal, and the claim went through further development, including a March 2022 hearing before the undersigned. The hearing transcript has been associated with the Veteran's claims file. In July 2022, the Board issued a decision finding that new and material evidence had, in fact, been received, so the service connection claim was reopened. The Board remanded the Veteran's service connection claim, directing the RO to search for documentary evidence corroborating the Veteran's claim that he spent time at an airfield in Da Nang during the Vietnam War. Entitlement to presumptive service connection for CAD, to include as due to exposure to herbicide agents, is granted. The Veteran asserts that he is entitled to service connection for CAD. His central theory of entitlement relies upon presumptive herbicide exposure due to his reported presence at an airfield in Da Nang. Upon review of the evidence, the Board agrees. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 38 U.S.C. § 1116(c), 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed in 38 C.F.R. § 3.309 shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Ischemic heart disease was added to the list of presumptive disabilities on August 31, 2010. 75 Fed. Reg. 53,702 (August 31, 2010). For the purpose of determining presumptive service connection, coronary artery disease is considered a form of ischemic heart disease. 38 C.F.R. § 3.309(e). The United States Court of Appeals for the Federal Circuit has held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The Board further notes that, on June 25, 2019, the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam, was signed into law. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (effective January 1, 2020). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency"a legal concept determining whether testimony may be heard and considered"and credibility, "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board is also charged with the duty to assess the probative weight given to all evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter (which includes but is not limited to equipoise), VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 778 (Fed. Cir. 2021). The Veteran worked as an ordnance mechanic stationed on the USS Bon Homme Richard, an aircraft carrier deployed off the coast of the Republic of Vietnam. The Veteran's DD-214 reflects that he received the Vietnam Service Medal. Although this medal does not by itself establish boots-on-the-ground, it helps to place the Veteran in the theater of operations during the relevant time period. At the March 2022 Board hearing, the Veteran and his representative acknowledged that the relevant logbooks do not support that he served on the USS Bon Homme Richard while it was located within 12 nautical miles of Vietnam. The record includes a Ship Locator map based on data in these logbooks, which does not show any time when the USS Bon Homme Richard was located within 12 nautical miles of Vietnam. See Blue Water Navy Ship Locator Dashboard, August 2021. Accordingly, the Veteran does not qualify for presumptive service connection based on his service while aboard the aircraft carrier under the Blue Water Navy Vietnam Veterans Act of 2019. The record indicates that the Veteran was assigned to report for duty at the USS Bon Homme Richard no later than June 27, 1967. See December 2016 Statement in Support of Claim; June 1967 Standard Transfer Order. The record indicates that he did not report for duty on that vessel until July 6, 1967. See July 2017 Statement in Support of Claim; History of Assignments Military Personnel Records, December 2016. The record indicates that the Veteran took a flight from Clark Air Base in the Philippines to the USS Bon Homme Richard. See June 1967 Travel Orders. The Veteran reports that he experienced a layover at the Da Nang Airfield in Vietnam before he arrived at his assigned aircraft carrier. July 2017 Statement in Support of Claim ("This was a layover due to this being the only route to get to the ship during this time frame"). According to the Veteran, he spent 14 to 16 hours in Da Nang waiting for his flight to the aircraft carrier. March 2022 Hearing Transcript. In December 2016, the Veteran submitted a buddy statement to corroborate his reported presence in Da Nang. A friend and fellow serviceman wrote the following in a February 2016 letter: I first met [the Veteran] when we were Airmen in the United States Navy assigned to the aircraft carrier USS Bon Homme Richard (CVA 31). [The Veteran] flew aboard from Da Nang, Vietnam in one of the daily COD [carrier onboard delivery] flights while the ship was on station in The South China Sea launching dozens of sorties daily against the North Vietnamese. The Board finds that the Veteran's testimony is credible, especially when viewed together with the credible testimony in the buddy statement. Moreover, the Veteran has consistently asserted his presence in Da Nang since the early days of his claim in 2014. See April 2014 Statement in Support of Claim. Upon review, this assertion predates the Board's determination that the Veteran's service on the aircraft carrier does not qualify for the herbicide presumption under the Blue Water Navy Vietnam Veterans Act of 2019. Accordingly, the Board finds that the Veteran's assertion is highly credible because he did not assert his presence in Da Nang as some kind of fallback argument after the Board determined that the USS Bon Homme Richard was more than 12 nautical miles off the coast of Vietnam. Additionally, the record indicates that the Veteran was ordered to report for duty "no later than" June 27, 1967. See June 1967 Standard Transfer Order. The record indicates, however, that he reported for duty on or about July 6, 1967. See History of Assignments Military Personnel Records, December 2016. Accordingly, the record includes documentary evidence supporting the Veteran's assertion that he experienced a layover which delayed his report for duty on the assigned date. The Board finds that this adds credibility to the Veteran's assertion that the layover took place at the Da Nang Airfield. As above, the June 2014 Rating Decision denied the Veteran's service connection claim because "the required service in Vietnam is not shown, nor is there evidence of exposure to herbicides during military service." Upon review, VA has diligently tried to find documentary evidence corroborating the Veteran's reported layover in Da Nang. VA's extensive efforts to unearth this evidence were memorialized in a November 2022 formal finding. Ultimately, no documentary evidence was located to support the Veteran's asserted layover in Da Nang. However, the Board finds that after affording the benefit of doubt to the Veteran, the evidence of record supports the conclusion that the Veteran experienced a layover in the Republic of Vietnam during the applicable presumptive period. Therefore, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, an in-service event, injury, or diseasespecifically herbicide exposurehas been established for the purpose of presumptive service connection. The Veteran has a current diagnosis of CAD, which is one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 75 Fed. Reg. 53,702 (August 31, 2010). Accordingly, the Board finds that the Veteran's service connection claim for CAD must be granted. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.D. Shoup, 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.