Citation Nr: A25035952 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 241016-482799 DATE: April 18, 2025 ORDER Entitlement to service connection for ischemic heart disease (IHD) is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during his active duty service. 2. The evidence of record persuasively weighs against finding that IHD was noted as chronic in the Veteran's service or manifested to a compensable degree within the applicable presumptive period; or that the current IHD is otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for IHD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which denied service connection for IHD. By way of history, in a July 2016 rating decision, the AOJ reopened and denied the Veteran's previously denied claim of entitlement to service connection for IHD. The Veteran filed a notice of disagreement (NOD) in July 2016 and a statement of the case (SOC) was issued in November 2016. He perfected a timely appeal via a VA Form 9 dated January 2017. In an April 2019 decision, the Board reopened and remanded the claim of entitlement to service connection for IHD. Following additional evidentiary development, a supplemental statement of the case (SSOC) was issued in August 2021. The Veteran's attorney, Robert V. Chisholm, filed a VA Form 20-0996, Decision Review Request: Higher-Level Review in September 2021. In an October 2021 Higher-Level Review rating decision, the AOJ denied service connection for IHD. In October 2022, Mr. Chisholm submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, as to the issue of service connection for IHD. The claim was denied in a January 2023 rating decision. In January 2024, Mr. Chisholm submitted another VA Form 20-0995, Decision Review Request: Supplemental Claim as to the matter of service connection for IHD. The claim was denied in a March 2024 rating decision. In October 2024, Mr. Chisholm submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he identified the March 2024 rating decision, the issue as service connection for IHD, and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 AOJ supplemental claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.800(c). The Board acknowledges that the period to request a change of docket under 38 C.F.R. § 20.202(c)(2) has not yet elapsed. See Williams v. McDonough, 37 Vet. App. 305 (2024) (holding that the Board generally may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed). However, in an October 2024 letter, Mr. Chisholm requested that the Board proceed with adjudication of the Veteran's claim and waived Veteran's right to request a docket change within the time period specified in 38 C.F.R. § 20.202(c)(2). The Board will therefore proceed with adjudication of the Veteran's claim. 1. Entitlement to service connection for IHD. 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, certain chronic diseases, including cardiovascular-renal disease, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this matter, the Veteran contends that his diagnosed IHD is the result of herbicide agent exposure during active duty. He specifically contends that he was exposed to herbicides while serving in or near the Demilitarized Zone (DMZ) in the Republic of South Korea. See, e.g., the Veteran's supplemental claim dated January 2024. For the reasons set forth below, the Board finds that the evidence is persuasively against an award of service connection. With respect to the first element necessary to establish a claim of service connection, a current disability, the record contains clinical evidence showing that the Veteran is diagnosed with IHD, specifically, coronary artery disease (CAD), in addition to atherosclerotic cardiovascular disease, congestive heart failure, cardiomyopathy, hypertensive heart disease. See the private Disability Benefits Questionnaire (DBQ) dated February 2016. In the March 2024 rating decision on appeal, the AOJ made the favorable finding that the Veteran had been diagnosed as having IHD. The Board is bound by this favorable finding absent clear and unmistakable error. 38 C.F.R. § 3.104(c). Finding no such error, the Board finds that the first element of a service connection claim has been met. With respect to in-service incurrence, the Veteran's December 1968 enlistment examination did not document any cardiac abnormalities. His service treatment records (STRs), including his September 1971 separation examination, do not document any complaints of or treatment for heart symptoms. Rather, the Veteran's September 1971 separation examination reflects that the Veteran's heart and vascular system were examined and affirmatively determined to be normal a separation. A chest X-ray was also negative for any abnormality. The record contains no indication that the Veteran's current heart disability manifested in service or to a compensable degree within a year of his separation from active duty. Rather, as will be described below, there is no documentation of any diagnosed heart disability prior to 1993. See, e.g., the private DBQ dated February 2016. The evidence is also persuasively against a finding that the Veteran was actually exposed to herbicides. As indicated above, the Veteran asserts that he was exposed to herbicides when he was deployed to South Korea from June 1969 to August 1970. See, e.g., the Veteran's statement dated July 2015. Specifically, he states that, while in South Korea stationed south of the DMZ, he "made many trips to the DMZ with mobile HAWK missiles in tow." Id. He additionally reports that he "also did many water runs for our unit to the main water flow from the 39th Parallel. This water was used by our compound on a daily basis, and thus is where I came into contact with Agent Orange, and was exposed to it daily for over 13 months." Id. In a July 2016 statement, the Veteran additionally stated that he was sent on temporary duty assigment (TDY) to Camp Casey, Camp Castle, and Camp Nimble for "short stays." To this end, the Veteran's service personnel records confirm that he was deployed to Korea from June 1969 to August 1970. Service personnel records indicate that the Veteran's military occupational specialty (MOS) during his deployment was message clerk and senior wireman with Battery A, 7th Battalion (HAWK), 2nd Artillery Division. Critically, the Veteran's service personnel records do not contain any documentation that he was sent to the DMZ in any capacity, to include on "water runs" for his unit. In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 or who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran's service personnel and treatment records show that he was stationed at Osan Air Force Base while serving in South Korea. There is no documentation in his service personnel or treatment records that he served in or near the Korean DMZ, Camp Casey, Camp Castle, or Camp Nimble. In response to inquiry by the RO, a July 2016 response from the Defense Personnel Records Information System (DPRIS) indicated the following: We reviewed the 1969 unit histories submitted by the 7th Battalion, 2nd Artillery (7th Bn, 2nd Arty), the 38th Artillery Brigade (38th Arty Bde) and the 1969 8th United States Army Chronology (higher headquarters). The records document that the Headquarters, 7th Bn, 2nd Arty was located at Sihung-ni Compound, South Korea. Training and firing exercises are mentioned but no locations given. The records do not document the use, storage, spraying or transportation of herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the unit members of the 7th Bn, 2nd Arty along the Demilitarized Zone (DMZ) such as delivering water to the compounds, during the reporting period. In response to additional inquiry by the RO, a February 2020 DPRIS response indicated the following: We reviewed the 1969-1970 unit histories submitted by the 7th Battalion, 2nd Artillery (7th Bn, 2nd Arty) and the 38th Artillery Brigade (38th Arty Bde). We also reviewed the Operational Report - Lessons Learned (OR-LL) submitted by the 38th Arty Bde for the period November 1969 - January 1970, and the 1969 - 1970 8th United States Army Chronologies. The records document the 7th Bn, 2nd Arty was located at Sihung-ni Compound, South Korea. Training and firing exercises are mentioned, but no locations given. The records do not mention or document Mr. [REDACTED] or personnel assigned to the 7th Bn, 2nd Arty traveling to Camp Casey, Camp Castle, and Camp Nimble. Also, the records do not document the use, storage, spraying, or transporting of Agent Orange or other tactical herbicides. In addition, the records do not document any specific duties performed by the 7th Bn, 2nd Arty unit members along the Demilitarized Zone (DMZ). Similarly, in a November 2020 response to RO inquiry, the Records Research Center provided the following response: A professional researcher from the Veterans Benefits Administration, Compensation Service, Records Research Center, has completed comprehensive research on the Veterans claimed Agent Orange exposure while traveling to Camp Casey, Camp Castle and Camp Nimble. We reviewed the 1969 - 1970 unit histories submitted by the 7th Battalion,2nd Artillery (7th Bn, 2nd Arty) and the 38th Artillery Brigade (38th Arty Bde). We also reviewed the Operational Report - Lessons Learned (OR-LL) submitted by the 38th Arty Bde for the period November 1969 - January 1970, and the 1969 - 1970 8th United States Army Chronologies. The records document the 7th Bn, 2nd Arty was located at Sihung-ni Compound, South Korea. Training and firing exercises are mentioned, but no locations given. The records do not mention, or document Mr. [REDACTED] or personnel assigned to the 7th Bn, 2nd Arty traveling to Camp Casey, Camp Castle, and Camp Nimble. Also, the records do not document the use, storage, spraying, or transporting of Agent Orange or other tactical herbicides. In addition, the records do not document any specific duties performed by the 7th Bn, 2nd Arty unit members along the Demilitarized Zone (DMZ). In conclusion, no evidence was located to support documentation of the claimed incident/event. Applying the facts to the criteria set forth above, the Board finds that the evidence of record is persuasively against a finding that the Veteran was exposed to herbicide agents during active service. There is also no evidence that a heart disability to include IHD arose in service or manifested to a compensable degree within a year after service. The arguments advanced by the Veteran and his attorney are solely based on presumed and actual exposure to herbicide agents while he served in Korea. See the Veteran's claims dated January 2012, August 2013, February 2016, and October 2022. As detailed above, the Veteran has asserted that he "made many trips to the DMZ with mobile HAWK missiles in tow." See the Veteran's statement dated July 2015. He reports that he "also did may water runs for our unit to the main water flow from the 39th Parallel. This water was used by our compound on a daily basis, and thus is where I came into contact with Agent Orange, and was exposed to it daily for over 13 months." Id. Additionally, the Veteran stated that he was sent TDY to Camp Casey, Camp Castle, and Camp Nimble for "short stays." See the Veteran's statement dated July 2016. As to presumptive exposure, IHD is a presumptive condition associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). However, service in the Republic of Vietnam or exposure to herbicides is not shown. The Veteran did not serve in Korea between April 1, 1968 and August 31, 1971, in a unit that operated in or near the Korean DMZ and the Veteran's service personnel records, as well as research conducted by the service department into its records, does not support his recollections of having served in or near the DMZ. As detailed above, the Veteran was assigned to Battery A, 7th Battalion (HAWK), 2nd Artillery Division. His assigned unit is not listed among those identified by DoD as operating in the Korean DMZ during the qualifying time period. See 74 Fed. Reg. 36,640, 36,641; see also M21-1 VA Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section H, Subsection 4.b. While the M21-1MR Adjudication Procedures Manual is not binding on the Board, the Board, as finder of fact, finds that DoD is in the best position to know which units operated in the Korean DMZ and when. Thus, the Board has assigned significant probative weight to DoD's findings that the Veteran's unit did not serve in or near the DMZ which outweighs the Veteran's recollections of events which occurred decades ago. The Board has also considered the Veteran's reports that he performed temporary duties at or near the DMZ and that TDY placed him at Camp Casey, Camp Castle, and Camp Nimble. However, records from the service department, including his service personnel records, do not show that he was ever part of a unit that has been identified by DoD as operating in the Korean DMZ during the qualifying time period. The Veteran has not contended that he was ever part of a specific unit identified by DoD. Thus, the appellant does not meet the requirements for presumptive exposure to herbicide agents for veterans who served in the Korean DMZ. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.307(a)(6)(iv). The Board notes that while the recently enacted PACT Act added locations for presumptive herbicide agent exposure, none of those locations is applicable to the Veteran's claim. Exposure to herbicide agents is thus not presumed. Concerning actual exposure, the Board similarly finds that the evidence is persuasively against such a conclusion. Although the Veteran's service in South Korea is not in dispute, there is no competent and credible evidence that he was exposed to Agent Orange or another herbicide agent during such service. The Board finds that the Veteran's contentions concerning duties in or near the Korean DMZ are not credible, as these assertions are not supported by the evidence of record. The Veteran has not offered any evidence to corroborate his contentions that his duties included trips to the Korean DMZ or TDY at Camp Casey, Camp Castle, or Camp Nimble. The Board finds that the service department records are more probative than the recollections of the Veteran concerning the duties and circumstances of his deployment in South Korea. As detailed above, repeated inquiry through the DPRIS and the Records Research Center have indicated that there are no service records to corroborate the Veteran's contentions concerning his duties serving in or near the Korean DMZ. As indicated above, the evidence shows that the Veteran was stationed at Osan Air Base in South Korea. The record contains no evidence showing that herbicide agents were used, stored, or present at Osan Air Base. To the extent that the Veteran believes he may have been exposed to herbicide agents during service in Osan Air Base, a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran's statements in this regard, as they lack competence, are not probative evidence indicating that he was exposed to an herbicide agent during service. The Veteran has not laid a foundation for his statements, as he has not shown that he has the particularized education, training or experience to identify Agent Orange, nor has he provided any specific information, beyond his bare assertions, upon which to conclude that he was, in fact, exposed to Agent Orange. Although the Veteran claims his heart disability developed as a result of herbicide exposure during service in Korea, the Board finds that his statements are not consistent with the overall evidence of record. The DPRIS and Records Research Center conducted detailed inquiry into the Veteran's contentions of exposure to herbicides, but concluded that service department records contained no evidence that the Veteran was so exposed. The Board has carefully considered the Veteran's statements to the effect that that he was exposed to herbicides during his active duty service. The Board finds, however, that the Veteran's contentions are neither competent nor credible, and do not serve to establish that he was exposed to an herbicide agent such as Agent Orange. Concerning the article titled "Vegetation Control Program CY1968," although the article indicates herbicide agents were present in Korea and tested in small areas as early as 1963, the specific locations of testing are not mentioned. The article simply states that testing occurred in locations such as guard posts, fields, and areas near, but south of, the DMZ South Tape; but does not provide more specific location information. While the report affirms the previous finding that herbicide agents were utilized at or near the Korean DMZ, it does not provide any information bearing on exposure to herbicide agents by servicemembers serving in the Veteran's unit and it does not specify exactly where herbicide agents were applied. Accordingly, the Board gives this evidence minimal if any probative with respect to actual herbicide agent exposure. In sum, the Board finds that the evidence is persuasively against an in-service injury or disease. A heart disability, to include IHD, was not noted during service, and the Veteran does not assert an onset during service. There is no evidence that the Veteran's current disability manifested in service or for many years thereafter. The evidence is also persuasively against a finding that the Veteran was actually exposed to herbicides. (Continued on the next page) ? Additionally, the record contains no indication that the Veteran's current IHD is otherwise casually related to service independent of the claimed herbicide exposure. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Absent any indication that the current disability may be associated with an established in-service injury, disease or event, an examination is not necessary. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in relative equipoise. Considering the record, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, as the evidence is not in approximate balance and is persuasively against the Veteran's claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.