On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota

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Myles Haynes
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1 Citation Nr: Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for ischemic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active air service from February 1966 to September This appeal arises to the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs

2 (VA) Regional Office (RO) in St. Paul, Minnesota, that denied service connection for ischemic heart disease. The record before the Board consists of paper claims files and electronic files. FINDINGS OF FACT 1. The Veteran served at Korat Royal Thai Air Base, Thailand (hereinafter: Korat), from September 1968 to September Herbicides were used near the base perimeter of Korat during 1968 and The Veteran frequently crossed the base perimeter at Korat during his one-year tour of duty there. 4. The Veteran has submitted competent evidence of ischemic heart disease, old myocardial infarction, and coronary artery disease. CONCLUSION OF LAW Ischemic heart disease may be presumed to have been incurred in active air service. 38 U.S.C.A. 1110, 5107 (West 2002); 1112, 1116 (West 2002 & Supp. 2013); 38 C.F.R , 3.303, 3.304, 3.307, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth at 38 U.S.C.A. 5103A (West 2002); 38 U.S.C.A. 5102, 5103 (West 2002 & Supp. 2013); 38 C.F.R , 3.156(a), and (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefit

3 sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. 1110; 1131 (West 2002); 38 C.F.R (a) (2013). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Each disabling condition shown by service treatment records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R (a) (2013). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R (d) (2011); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A (West 2002); 38 C.F.R (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.

4 The Veteran's DD-214 reflects that he earned the Vietnam Service Medal (hereinafter: VSM) with one bronze service star and the Republic of Vietnam Campaign Medal (RVCM). The significance of these decorations is briefly discussed below. The VSM is presented to any service member who served on temporary duty for more than 30 consecutive days, or 60 nonconsecutive days, attached to or regularly serving for one, or more, days with an organization participating in or directly supporting ground (military) operations or attached to or regularly serving for one, or more, days aboard a naval vessel directly supporting military operations in the Republic of Vietnam, Thailand, Cambodia, or Laos within the defined combat zone (DoD 1348 C revised September 1996) between November 15, 1961, and March 28, 1973, and from April 29 to April 30, The RVCM is awarded to personnel who meet one of the following requirements: (a) Served in the Republic of Vietnam for six months during the period of 1 March 1961 and 28 March 1973; (b) Served outside the geographical limits of the Republic of Vietnam and contributed direct combat support to the Republic of Vietnam and Armed Forces for six months. Such individuals must meet the criteria established for the Armed Forces Expeditionary Medal (for Vietnam) or the Vietnam Service Medal, to qualify for the RVCM; (c) Six months service is not required for individuals who were wounded by hostile forces; killed in action, or otherwise in line of duty; or, captured by hostile forces. In June 2010, the Veteran requested service connection for ischemic heart disease. He claimed that exposure to Agent Orange had caused a heart attack in Service treatment records do not note ischemic heart disease or symptoms of such. In July 2010, the Veteran reported that he served at Korat and, while there, served in areas that were frequently sprayed with herbicides. He submitted private medical reports of a myocardial infarction in

5 June 1990 and diagnoses of coronary artery disease and ischemia in In August 2010, the Joint Services Records Research Center reported that the Veteran had served in Thailand, but that he had not served as a security policeman, dog handler, or other security field, nor did official records corroborate that he had served near the base perimeter. In March 2011, the Veteran reported that he made daily trips over the base perimeter, because his assigned work station was outside of the perimeter; it was a six-mile round-trip from his quarters to his work station. He submitted photos and maps of Korat depicting his job site and his living quarters. In his substantive appeal, the Veteran reported that he served at Korat from September 1968 to September He again stressed that he transited the base perimeter on a daily basis. At a hearing in June 2012, the Veteran testified before the undersigned that he had to cross the base perimeter daily to reach his job site. He testified that his living quarters were also located near the perimeter. The Board must address the competency, credibility, and probative value of this lay testimony. The lay testimony is competent with respect to observance of where and when he served and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, (2005). His determination of when ischemic heart disease arose is also competent, credible, and persuasive. 38 C.F.R ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating that a lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional).

6 In April 2011, the RO received official VA guidance that states, "The following Veterans may have been exposed to herbicides." The list appearing immediately thereafter includes U. S. Air Force Veterans who had been stationed at Korat between 1961 and The VA guidance then directs that: To receive benefits for diseases associated with herbicide exposure, these Veterans must show on a factual basis that they were exposed to herbicides during their service as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The VA guidance also states, "VA determined that herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides." VA Adjudication Manual M21-1 MR, Part IV, Subpart ii, Chapter 2.C 10, para Q provides for conceding exposure to herbicides at Korat where there is credible evidence that the claimant was near the base perimeter. That subsection states that VA's Compensation Service has determined that "a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thai military bases." In this case, there is credible testimony of possible exposure to herbicides at Korat and there is corroborating evidence, such as the base map that suggests that the Veteran passed through perimeter areas going to/from his job. Resolving any remaining doubt in favor of the Veteran and conceding that the Veteran has earned the VCM and the RVSM, the Board concludes that the Veteran was never in Vietnam, but it is at least as likely as not that he was exposed to herbicides during active air service at Korat. VA's special provision for service connection for ischemic heart disease may now be addressed. VA regulations contain special provisions for service connection for those exposed to herbicides during active service. 38 U.S.C.A. 1116

7 (West 2002 & Supp. 2013); 38 C.F.R (e) (2013). The statute and regulation provide for presumptive service connection for ischemic heart disease, including old myocardial infarction and coronary artery disease. Because it has been shown that the Veteran was exposed to herbicide agents at Korat and because ischemic heart disease later arose, presumptive service connection is warranted. Service connection for ischemic heart disease will therefore be granted. ORDER Entitlement to service connection for ischemic heart disease is granted. L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

Occupation 1: Inventory management specialist Citation Nr: 1113898 Decision Date: 04/08/11 Archive Date: 04/15/11 DOCKET NO. 09-28 468 ) ) ) DATE On appeal from the Department of Veterans Affairs Regional