Citation Nr: 1116364	
Decision Date: 04/27/11    Archive Date: 05/05/11

DOCKET NO.  09-29 194	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for coronary artery disease, to include as secondary to in-service herbicide exposure.

2.   Entitlement to service connection for hypertension, to include as secondary to in-service herbicide exposure.

3.  Entitlement to service connection for a hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency, to include as secondary to in-service herbicide exposure.

4.  Entitlement to service connection for a genitourinary disorder manifested by bladder discomfort, to include as secondary to in-service herbicide exposure.


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. L. Northcutt, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1966 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St Louis, Missouri.  

The Veteran provided testimony at a hearing before the a Decision Review Officer in October 2009.  A transcript of this hearing has been associated with the Veteran's VA claims file.

The issues of entitlement to service connection for hypertension, a hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and a genitourinary disorder manifested by bladder discomfort are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  The Veteran's service personnel records establish his service in Thailand.

2.  Lay statements submitted by the Veteran and another service member credibly report their observation of herbicide use on Camp Kanchanaburi, Thailand, during their period of service.

3.  As reflected in the May 2010 VA Compensation and Pension (C&P) Service Bulletin, the C&P Service has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand.

4.  Coronary artery disease (i.e,. ischemic heart disease) is among the list of enumerated diseases for which presumptive service connection may be established based on in-service herbicide exposure.


CONCLUSION OF LAW

The criteria for service connection for coronary artery disease have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010); 75 Fed. Reg. 14,391 (March 25, 2010); 75 Fed. Reg. 53,202 (August 31, 2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In the instant case, the Board is granting service connection for coronary artery disease as secondary to in-service herbicide exposure; thus, the Board is granting the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further considered.

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

Establishing direct service connection generally requires (1) evidence of a current disability; (2) evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2010).

Additionally, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 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 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease.  38 C.F.R. § 3.309(e); 75 Fed. Reg. 14,391 (March 25, 2010); 75 Fed. Reg. 53,202 (August 31, 2010).

In the proposed rule, which was ultimately adopted, VA noted that, according to Harrison's Principles of Internal Medicine (Harrison's Online, Chapter 237, Ischemic Heart Disease, 2008), IHD [ischemic heart disease] is a condition in which there is an inadequate supply of blood and oxygen to a portion of the myocardium; it typically occurs when there is an imbalance between myocardial oxygen supply and demand.  Therefore, for purposes of the regulation, the term ''IHD'' [ischemic heart disease] includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.  Since the term refers only to heart disease, it does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke.  75 Fed. Reg. 14,391, 14,393 (March 25, 2010).

Initially, the Board notes that the Veteran is currently diagnosed with coronary artery disease, a form of ischemic heart disease, as reflected in his VA treatment records.  As referenced above, ischemic heart disease is a disability for which presumptive service connection may be established based on herbicide exposure during service.  However, the presumption of exposure to herbicides is commonly applied to Veterans who served in Vietnam during the Vietnam Era; no such presumption exists under VA regulations for Veterans stationed in Thailand during the Veteran's period of service.  38 C.F.R. § 3.307(a)(6)(iii).  Nevertheless, the Board finds that the evidence of record establishes the Veteran's likely exposure to herbicides during his period of service, as established by the Veteran and his fellow service member's credible submitted statements, the Veteran's service personnel records, submitted declassified documents, and a May 2010 C&P Service Bulletin

Specifically, the Veteran reports that during his period of service, he was stationed at Camp Kanchanaburi in Thailand from February 1968 to June 1969, and his service personnel records confirm his service in Thailand during this period.  The Veteran reports exposure to herbicides during his service on this military base, and he posits that the barrels stored at this military base (as seen in pictures submitted by the Veteran) stored herbicides.  A March 2008 medical survey completed by a VA Agent Orange examiner reflects the Veteran's report that he was exposed to Agent Orange while stationed in Thailand, and that, while he did not spray the herbicide himself and was not directly sprayed with the chemical, he believes that he was present in areas that were recently sprayed with herbicides and may have consumed food or drink contaminated by herbicides.

Additionally, a letter authored by a retired Army officer reflects his recollection that while stationed at Camp Kanchanaburi in Thailand from February 1968 to February 1969, herbicides were sprayed on an irregular basis to control vegetation around the perimeter of the military base and that sometimes vegetation inside the base perimeter was sprayed as well.  The former service member reported that local national laborers usually sprayed the herbicides. The Veteran has also submitted copies of declassified documents that reflect herbicide use on military base perimeters, as well as a corresponding memorandum stating that these de-classified documents refer to herbicide use on Thailand bases from 1968-1972.  

In addition to the evidence submitted by the Veteran, the Board also finds a May 2010 VA C&P Service Bulletin, which highlights new procedures for claims based on herbicide exposure in Thailand and Korea, to be instructive.  The Bulletin notes that the C&P Service has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as noted in the Project CHECO Southeast Asia Report: Base Defense in Thailand.  

Initially, the Board finds that the Veteran and his fellow service member are competent, as laypersons, to report their observation of herbicide use during their period of service.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required).  Moreover, the Board finds these reports of likely in-service herbicide exposure to be credible, as the reports are corroborated by other evidence of record.  Furthermore, the Veteran's reports of his exposure have remained consistent over time are.  C.f. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a Veteran, that had varied over time was not credible).  

In that regard, the Veteran has consistently reported that he believes that he was exposed to areas in which herbicides were sprayed, not that he himself sprayed the herbicides, and he has posited that his herbicide exposure could be inferred based on evidence that herbicide barrels were stored at his military base.  While the evidence of record does not specifically confirm the Veteran's exposure to herbicide storage during service (as the substance in the barrels in the Veteran's submitted pictures is not identified), the evidence of record definitively reflects that (a) the Veteran was stationed in Thailand during his period of service (as noted in his service personnel records), and (b) that herbicides were routinely used to control vegetation at Thailand military bases during his period of service (as noted in declassified documents submitted by the Veteran, as well as the aforementioned May 2010 VA C&P Bulletin).  Furthermore, while the C&P Bulletin emphasizes the likelihood of herbicide exposure to service members whose duties involved work on the perimeter of these Thailand bases, the credible account of the Veteran's fellow service member reflects his recollection that herbicides were also occasionally sprayed inside the perimeter of their base.  Thus, while the Veteran's duties as reflected in his personnel records would not have necessarily involved work on the base perimeter, the Board finds that the Veteran may nevertheless have had herbicide exposure given the credible account of herbicide use inside the military base perimeter.  As such, and resolving all reasonable doubt regarding this matter in favor of the Veteran, the Board finds that the evidence of record is sufficient to establish the Veteran's herbicide exposure during service.  See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Accordingly, given the Veteran's in-service herbicide exposure, coupled with the medical evidence reflecting his current diagnosis of coronary artery disease, the Board finds that a basis for awarding service connection for coronary artery disease as secondary to in-service herbicide exposure has been presented.  Therefore, the Veteran's appeal as to this issue is granted. 


ORDER

Service connection for coronary artery disease as secondary to in-service herbicide exposure is granted.


REMAND

With regard to the remaining issues certified for appellate review, namely entitlement to service connection for hypertension, a hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and a genitourinary disorder manifested by bladder discomfort, the Board finds that further evidentiary development is warranted before these claims may be adjudicated on the merits.  

Initially, the Board notes that, when filing his service connection claims, the Veteran reported that he had received VA treatment at the Kansas City, Missouri, VA Medical Center for his claimed disorders since January 2002 and requested that the RO obtain these treatment records.  It appears that the RO searched for records dated only from January 1, 2002, to January 31, 2001, but no records were retrieved.  Additionally, the only VA treatment records currently associated with the Veteran's claims file are from October 2008.  Accordingly, the Board finds that all of the VA treatment records identified by the Veteran as relevant should be obtained and associated with the claims file.  38 C.F.R. § 3.159(c)(2) (2010).  

Moreover, the Board finds that the Veteran should be afforded a VA examination so as to determine whether his claimed disorders are related to his military service, to include his in-service herbicide exposure or otherwise on a direct basis, or as secondary to his now-service-connected coronary artery disease.  In this regard, the Board has determined that the Veteran was exposed to herbicides coincident to his service in Thailand.  Additionally, his service treatment records reflect that he was treated for a urinary tract infection and probable cysto-urethro-prostatitis.  Furthermore, the United States Court of Appeals for Veterans Claims has held that, when determining service connection, all theories of entitlement, direct and secondary, must be considered.  Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).   In this regard, service connection has been awarded herein for coronary artery disease and, therefore, the examiner should render opinion as to whether such service-connected disability caused or aggravated his claimed disorders.

The Board acknowledges that the current medical evidence of record establishes diagnosis of hypertension and Factor Leiden 5 mutation and protein C and S deficiency, but not a genitourinary disorder manifested by bladder discomfort.  Nevertheless, such a current diagnosis may be established by treatment records obtained pursuant to the remand directives set forth below, or established by the VA examiner during the requested VA examination.  

The Board also notes that the Veteran has not been provided with proper notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) regarding the secondary aspect of his claims.  Therefore, such should be accomplished on remand.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claims of entitlement to service connection for hypertension, a hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and a genitourinary disorder manifested by bladder discomfort as secondary to his service-connected coronary artery disease.  

2.  Obtain all VA treatment records from the Kansas City, Missouri, VA Medical Center dated from January 2002 to the present.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3.  After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination(s) to determine the current nature and etiology of his hypertension, a hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and a genitourinary disorder manifested by bladder discomfort.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted.

After examining the Veteran, the examiner is asked to opine whether it is at least as likely as not that any currently diagnosed hypertension, hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and/or genitourinary disorder manifested by bladder discomfort is related to his military service, to include his in-service herbicide exposure and/or treatment for urinary tract infection and probable cysto-urethro-prostatitis.

The examiner should also offer an opinion as to whether it is at least as likely as not that any currently diagnosed hypertension, hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and/or genitourinary disorder manifested by bladder discomfort is caused or aggravated by the Veteran's service-connected coronary artery disease. 

In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed disorders as well as the continuity of symptomatology.  The rationale for any opinion offered should be provided.
   
4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs