Citation Nr: A22020353 Decision Date: 10/05/22 Archive Date: 10/05/22 DOCKET NO. 200722-98443 DATE: October 5, 2022 ORDER Entitlement to service connection for heart disease, to include myocardial infarctions, atherosclerotic heart disease, and ischemic heart disease; to include as due to herbicide agent exposure; and to include as due to exposure to contaminants at George Air Force Base, is denied. Entitlement to service connection for residuals of a stroke, to include as secondary to heart disease, is denied. FINDINGS OF FACT 1. The Veteran's heart disease is not related to service, to include as due to herbicide exposure. 2. The Veteran's stroke residuals are not related to service, or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1131,1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. 3. The criteria for service connection for stroke residuals, to include as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from November 1970 to May 1973, and with the United States Navy from December 1976 to February 1979. By way of history, a November 2014 rating decision, in pertinent part, denied service connection for heart condition (claimed as myocardial infarction, coronary artery disease, ischemic heart disease, and coronary atherosclerosis) and stroke residuals. In December 2014, VA received the Veteran's Notice of Disagreement (NOD). In April 2015, the Regional Office (RO) issued a Statement of the Case (SOC). In May 2015, VA received the Veteran's VA Form 9 (substantive appeal) to the Board. In July 2018, the Board, in pertinent part, remanded the claims. Subsequent to a June 2020 Supplemental Statement of the Case (SSOC), a VA Form 10182 was received from the Veteran in July 2020. The Veteran opted into the Appeals Modernization Act (AMA) system, electing the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the June 2020 SSOC. 38 C.F.R. § 20.301. In January 2022, the Veteran submitted a request to advance this case on the docket "since [he] need[s] someone to care for [him]." Although the Board does not question the veracity of the Veteran's request, he has not submitted sufficient supporting evidence to demonstrate that he requires assistance and care. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.800(c). Therefore, in the absence of sufficient cause, the Veteran's motion to advance on the docket is denied. 1. Entitlement to service connection for heart disease, to include myocardial infarctions, atherosclerotic heart disease, and ischemic heart disease; to include as due to herbicide agent exposure; and to include as due to exposure to contaminants at George AFB 2. Entitlement to service connection for residuals of a stroke, to include as secondary to heart disease The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations state that a veteran who 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 an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. In addition, a veteran who, during active military, naval, or air service, 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 demilitarized zone (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). Herbicide exposure is also presumed for service members who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray herbicides during the Vietnam Era. 38 C.F.R. § 3.307(a)(6)(v). Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases, which include coronary artery disease (CAD) (also known as ischemic heart disease). Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). The Veteran and his representative contend that he is entitled to service connection for his heart disease due to exposure to Agent Orange and/or contaminants when he worked as a ground equipment repairman at George AFB in California working on aviation equipment and C-123 airplanes that returned from Vietnam. He also contends that his stroke residuals are secondary to his heart disease. At the outset, the Board finds that credible medical evidence establishes diagnoses of CAD, congestive heart failure, and acute stroke residuals. See e.g., Ischemic Heart Disease Disability Benefits Questionnaire, dated July 2014, and VAMC Report of Hospitalization, received June 2020. As a preliminary matter, the Veteran's DD-214 shows his military occupational specialty (MOS) consisted of Aerospace Ground Equipment Repairman from November 1970 to May 1973. Service personnel records reveal he was assigned to the 35th Field Maintenance Squadron at George AFB. Performance reports reveal the Veteran's duties consisted of pickup and delivery of aerospace ground equipment, performing minor and major repairs, troubleshooting, adjusting, testing, inspecting, and providing services assigned by use of technical orders, manuals, directives, and special tools. The Board has closely reviewed the evidence of record that concludes that, with respect to presumptive exposure to toxic herbicides, the evidence does not indicate that the Veteran served in Vietnam or that the Veteran otherwise meets the criteria for presumptive herbicide exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6); See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Specifically, the Board recognizes the Veteran's statements that he was exposed to Agent Orange while stationed at George AFB. However, the Board takes note of the fact that a September 2014 correspondence from the U.S. Army and Joint Services Records Research Center (JSRRC) indicates that it could not document or verify that the veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The JSRRC also indicated that the George AFB was not a site identified in Department of Defense records as handling or storing herbicides. Therefore, while the Board acknowledges the Veteran's statements that he was exposed to Agent Orange while stationed at George AFB, there is simply no indication that Agent Orange was used on that base. While the Veteran has submitted several incomplete articles indicating C-123 airplanes, formerly used to spray Agent Orange during the Vietnam War, have raised health concerns about exposure to herbicides, these articles do not indicate that defoliants such as Agent Orange or any other sort of dioxin containing herbicide, were handled, or stored at the George AFB, or that C-123 airplanes formerly used to spray Agent Orange, were sorted at the George AFB. Further, these articles do not identify any specific contaminants that were used at George AFB or attribute the use of contaminants to the base's closure. Moreover, his military personnel records do not show that he "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray herbicides during the Vietnam Era" at George AFB. His performance reports do not indicate that the Veteran's duties involved C-123 aircraft. Therefore, the Board does not find that presumptive herbicide exposure is warranted under 38 C.F.R. § 3.307(a)(6)(v). As such, the Veteran does not meet the criteria for presumptive herbicide exposure under 38 C.F.R. § 3.307(a)(6) and actual exposure to toxic herbicides and contaminants is not conceded. Although the Veteran's heart disease may not be presumed related to toxic herbicide exposure, the Veteran is not precluded from also establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Nevertheless, the Board concludes that while the Veteran has a current diagnosis of heart disease and stroke, including residuals thereof, the evidence weighs persuasively against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. In this case, the available service treatment records do not report any signs, symptoms, or a diagnosis of a heart disease at any point during service. The post-service medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to a heart disease or stroke residuals until approximately 1991, when the Veteran was assessed with hypertension and stroke residuals. He had a myocardial infarction in 1998. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes that while the Veteran is competent to report that he experienced certain observable symptoms related to his heart disease and stroke residuals, the Veteran has not asserted that his symptoms have been continuous since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Next, although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran's current symptoms. Here, as discussed, the Veteran's treatment records reflect that he first had symptoms of heart disease and stroke residuals until more than a decade post-service. There is not sufficient evidence in the medical records to demonstrate a nexus between his active service and these current disorders. Notably, in addition to the fact that there was no indication of a heart disease or stroke residuals in service, to include Agent Orange and any reported contaminants at George AFB. As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his heart disease, stroke residuals, and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. The issue is medically complex as it requires knowledge of the interaction between systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the Veterans statements, by themselves, are insufficient to establish service connection. In addition, the Board finds that secondary service connection for stroke residuals is not warranted, as the Veteran has not established service connected for a heart disease. Secondary service connection cannot be established if the underlying disability is not service connected. 38 C.F.R. § 3.310(a). (Continued on the next page) Additionally, VA's duty to provide a VA examination was not triggered in this case. In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record does not establish that the Veteran's heart disease and stroke residuals manifested during service or within one year of service or is related to service. As such, a VA examination or opinion is not necessary. In sum, the evidence persuasively weighs against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for heart disease and stroke residuals is not warranted. Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.