Citation Nr: A24029719 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 231101-388330 DATE: June 6, 2024 ORDER Entitlement to service connection for coronary artery disease, as due to herbicide exposure, is granted. Entitlement to service connection for diabetes mellitus, as due to herbicide exposure, is granted. Entitlement to service connection for Parkinson's disease, as due to herbicide exposure, is granted. Entitlement to service connection for hypertension, as due to herbicide exposure, is granted. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran was presumptively exposed to herbicides during his active service. 2. The Veteran has diagnoses of coronary artery disease, diabetes mellitus, Parkinson's disease, and hypertension which are presumed to be related to exposure to herbicides in active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for coronary artery disease, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for Parkinson's disease, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for hypertension, as due to in-service herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1993. The rating decisions on appeal were issued in August 2023 (hypertension) and October 2023 (coronary artery disease, diabetes mellitus, Parkinson's disease) and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 5, 2024. Therefore, the Board may only consider the evidence of record at the time of the August and October 2023 agency of original jurisdiction (AOJ) decisions on appeal, 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). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board recognizes that the service connection issues (diabetes mellitus, Parkinson's disease and coronary artery disease) were previously denied in a July 2019 rating decision. VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). In the October 2023 decision on appeal, the AOJ decided the issues on the merits and denied the claims. As the AOJ decided the issues on the merits, it is implied that it found that new and relevant evidence had been submitted. As the AOJ has already determined that new and relevant evidence has been submitted, the Board need not address new and relevant evidence here. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38?U.S.C. §§?1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38?C.F.R. §?3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38?C.F.R. §?3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38?C.F.R. §?3.303(d). Finally, 38?U.S.C. §?1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2)?the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for coronary artery disease, as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, as due to herbicide exposure. 3. Entitlement to service connection for Parkinson's disease, as due to herbicide exposure. A Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain herbicide agents, to include the commonly referred herbicide agent, Agent Orange, absent affirmative evidence to establish that the Veteran was not exposed. See 38 U.S.C. § 1116(d); 38 C.F.R. §§ 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). As relevant to the instant case, the United States Court of Appeals for the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), in which it held that, for the purpose of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term "service in the Republic of Vietnam" includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. The holding in Procopio was codified in the Blue Water Navy Vietnam Veterans Act of 2019 (the BWN Act). 38 U.S.C. § 1116A(c). The BWN Act defines "offshore" as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude listed in an included table. 38 U.S.C. § 1116A(d). Thus, to show service in the Republic of Vietnam to be entitled to presumptive service connection due to herbicide agent exposure, the evidence must show that the Veteran served within the land borders (including the inland waters) or served on a ship within 12 nautical miles seaward of the line defined by the BWN Act. Id.; 38 C.F.R. § 3.307(a)(6)(iii); Procopio, 913 F.3d 1371. Certain disorders, including coronary artery disease, diabetes mellitus, and Parkinson's disease, for an herbicide agent-exposed veteran may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The Veteran asserts entitlement to service connection for coronary artery disease, diabetes mellitus, and Parkinson's disease based on in-service exposure to herbicide agents during service in the territorial waters of the Republic of Vietnam while onboard the U.S.S. Intrepid. The Veteran's military personnel records confirm that the Veteran was assigned to the U.S.S. Intrepid from May 1967 to December 1967. The Board notes that in the October 2023 rating decision on appeal, the AOJ made favorable findings that the Veteran had been diagnosed with coronary artery disease, diabetes mellitus, and Parkinson's disease. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Thus, the first element of service connection, a current disability, has been met. Next, the evidence of record conflicts as to whether the Veteran had qualifying service in the Republic of Vietnam. The Veteran's service personnel records show that he served aboard the U.S.S. Intrepid from May 1967 to December 1967. In a June 2019 statement, the Veteran reported that he had been stationed on the U.S.S. Intrepid. He reported that they flew air operations over North Vietnam. As a plane captain he reported spending 18-20 hours of the flight deck daily, so whatever chemicals were in the air, he was exposed to them. In a January 2020 statement, the Veteran reported that while stationed on the USS Intrepid, he remembers watching explosions ashore from the flight deck. In a September 2020 Report of General Information, the Veteran stated that he was tasked to clear aircraft after they landed on the ship. In a February 2023 statement, the Veteran reported that while stationed on the U.S.S. Intrepid he was on the flight deck for 18-24 hours a day and was exposed to herbicides. He asserts that the U.S.S. Intrepid was within 12 nautical miles of Vietnam. A professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, completed comprehensive research on the Veteran's claimed exposure while aboard the U.S.S. Intrepid and stated that no evidence was located to support documentation of the claimed exposure. Additional research was completed with respect to other unit assignments. The research did not find qualifying service for presumptive herbicide exposure. In a June 2023 memorandum, RO investigators concluded exposure to herbicides in the Veteran's case could not be conceded "as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23." A June 2023 Toxic Exposure Risk Activity (TERA) memorandum noted military occupational specialty (MOS) related exposure as an aviation machinist's mate (jet engine mechanic), with probable asbestos exposure. During the February 2024 Board hearing, the Veteran testified that he served aboard the U.S.S. Intrepid while it operated off the coast of Vietnam. He essentially asserts that he believes that the U.S.S. Intrepid was stationed inside Vietnam's 12-mile territory of waters. Logbooks associated with the Veteran's record reflect that the U.S.S. Intrepid was located close to shore in November 1967. 38 U.S.C. § 1116A(d). As noted above, "service" in the Republic of Vietnam includes (but is not limited to) duty on aircraft carriers and other ships operating temporarily within the 12 nautical miles of territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A; Procopio, 913 F.3d 1371. Based on the above, the Board resolves doubt in favor of the Veteran and finds that the Veteran was in the 12-nautical-mile territorial sea of Vietnam, and thus, he is presumed to have been exposed to herbicide agents. Finally, as previously noted, coronary artery disease, diabetes mellitus, and Parkinson's disease are presumed to be caused by service when a veteran served in the Republic of Vietnam during the presumptive periods when herbicide agents were used. 38 C.F.R. § 3.309(e). The Board finds that the Veteran is presumed to have been exposed to herbicide agents while in the territorial waters of the Republic of Vietnam and subsequently manifested coronary artery disease, diabetes mellitus, and Parkinson's disease following service separation; thus, the third element of service connection is satisfied. Accordingly, the issues of entitlement to service connection for coronary artery disease, diabetes mellitus and Parkinson's disease, as due to herbicide exposure, are granted. 4. Entitlement to service connection for hypertension, as due to herbicide exposure. The Board notes that in the August 2023 rating decision on appeal, the AOJ made a favorable finding that the Veteran had been diagnosed with hypertension. The Board is bound by this favorable finding. 38C.F.R. §3.104(c). Therefore, the remaining issue before the Board is whether hypertension can be service connected on a presumptive basis. The Board finds that pursuant to the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) hypertension has been added to the list of diseases that are presumed due to in service herbicide agent exposure. 38 U.S.C. § 1116(a)(2)). Thus, the Veteran is entitled to service connection on a presumptive basis. The Board finds that the Veteran has a diagnosis of hypertension during the period on appeal, the Veteran has herbicide agent exposure established (see analysis above), and thus he is entitled to presumptive service connection for his hypertension. (Continued on next page) In sum, the Board finds that the evidence is persuasively in favor of granting the Veteran's claim for service connection for hypertension. The claim is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.