Citation Nr: 1331099 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-24 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for throat cancer, to include laryngeal carcinoma, status post laryngectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of August 2006. The Veteran testified before a Decision Review Officer in June 2009. He subsequently testified before the undersigned Veterans Law Judge in February 2010. This case was previously remanded in April 2010 and again in April 2012 for further development. The appeal is once again before the Board. FINDINGS OF FACT 1. The Veteran did not serve within the land borders in Vietnam, nor has actual exposure to Agent Orange been demonstrated. 2. Throat cancer, to include laryngeal carcinoma status post laryngectomy first manifested many years after service, and are not related to any events which occurred in service, including as a result of his duties handling munitions. CONCLUSION OF LAW Throat cancer, to include laryngeal carcinoma status post laryngectomy, was not incurred in or aggravated by service nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in July 2005, prior to the adjudication of the claim, the RO notified the Veteran of the information necessary to substantiate the claim for service connection for laryngeal cancer, including as a result of exposure to herbicides, and of his and VA's respective obligations for obtaining specified different types of evidence. He was told that the evidence must show a relationship between his current disability and an injury, disease or event in military service. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claims. In addition, in June 2007, he was provided information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). At the Travel Board hearing in February 2010, the undersigned fully explained the issue, and described the type of evidence the Veteran might wish to obtain to substantiate his claim. The Veteran's claimed in-service exposure was discussed in detail. The Veteran's Law Judge discussed the elements required for a service connection claim, including the elements found to be missing in the rating decision on appeal. Moreover, the file was remanded for additional action based, in part, upon his testimony. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The case was remanded in April 2010, and then again in April 2012, to accomplish actions not completed pursuant to the prior remand. The RO contacted the appropriate agencies attempting to determine the chemicals or agents that the Veteran was likely exposed to in service, but was told that the evidence was insufficient to determine any specific chemical exposures. The Veteran did not provide information specific enough to warrant an additional request. He was afforded an examination, which determined that it was unlikely that exposure to toxins in service caused his head/neck cancers. There has now been substantial compliance with the Board's remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). Service treatment records have been obtained, as have identified VA and private medical records. All available personnel records have been obtained. The evidence provided by the Veteran concerning the munitions to which he was exposed was not specific enough to warrant further investigations of the agents to which he may have been exposed during service. A Memorandum of Unavailability was issued. The Veteran was advised of the same. The Air Force Historical Research Agency has provided the available records concerning whether the Veteran was in Vietnam during service. The Veteran was afforded a VA examination in June 2013. The report of the examination was based on a physical examination, review of the records, and interview of the Veteran. The examiner provided rationale for his findings. When considered in conjunction with the other evidence of record, the opinion is sufficient for the Board to make an informed decision. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In July 2013, the Veteran submitted additional medical evidence, and a waiver of initial RO consideration of the evidence was received as well. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 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 establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, a Veteran 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 (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Laryngeal cancer was not shown during service, or for many years thereafter. He was first diagnosed with the condition in 1992. This was treated, eventually with a laryngectomy, over the next few years. Unfortunately, he later developed pharyngeal cancer with lymph note involvement, diagnosed in 2011, which has been treated with chemotherapy and radiation therapy. This was thought to be a second primary. These diseases were not shown during service, or for many years thereafter. Service connection based on direct onset (38 C.F.R. § 3.303(a)), continuity of symptomatology (38 C.F.R. § 3.303(b)), or the general one-year presumption (38 C.F.R. § 3.309(a)) is not warranted. The Veteran does not argue the contrary. Instead, he contends that he was exposed to Agent Orange, as well as a number of other toxic substances, during service, and that one or more of these resulted in the development of laryngeal and pharyngeal cancers. VA law provides that service incurrence for certain diseases, including cancer of the larynx, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id.; see MR21-1MR, Part IV, Subpart ii, Chapter 2, § C; Stefl v. Nicholson, 21 Vet. App. 120 (2007). A Veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides such as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In other words, the physical presence of a Veteran within the land borders of Vietnam during service is required for the presumption to apply. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) The Veteran's DD Form 214 does not reflect Vietnam service. He served in the U.S. Air Force, and was stationed at Takhli Royal Air Force Base in Thailand from April 1965 to April 1966. He was awarded the Vietnam Service Medal (VSM) and the Air Force Vietnam Campaign Medal (AFVCM), but such awards do not require the physical presence in Vietnam. See Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008) (held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a VSM); Manual of Military Decorations and Awards, C7.5.1.6.2. (Department of Defense Manual 1348.33- M, September 1996) (receipt of AFVCM may be issued to a Veteran who served outside the geographical limits of South Vietnam and contributed direct combat support to the RVN Armed Forces for an aggregate of six months). The Veteran states that he served as a munitions handler while in Thailand, and, as such, he was sent on TDY (temporary duty) a number of times to Vietnam to assist when ammunition shipments arrived. He said that there were not enough munitions personnel in Vietnam in 1965, and thus they were required to go to Vietnam to help offload munitions and bombs, and help to stockpile them. There is no evidence in the Veteran's personnel records that he was sent to Vietnam at any point, including on TDY. However, the Veteran testified at his hearing, and reiterated in a written statement in May 2011, that although technically these trips were TDY, there were never any orders cut. He indicated that this was a very fluid time over there, and things were not as formal as later. He also testified that this was during the "Secret War," when Thailand did not want it broadcast that the USAF was flying in and out, so the trips were kept quiet. However, an article he submitted, from Wikipedia, in support of his contention concerning the "Secret War," does not support his assertion. That article only indicates that American aircraft deployed to Thailand, and combat missions to Vietnam in the 1960's from Thailand, were not to be publicized. However, there is no indication that the missions or deployment would not be documented internally by the USAF. Moreover, the article refers to combat sorties, not ground support operations such as described by the Veteran. An archivist with the Air Force Historical Research Agency wrote, in November 2011, that he had reviewed the available histories of the munitions function at Takhli Royal Thai Air Force Base for the period from May 1965 through June 1967. He had learned that the year 1965 was filled with many organizational changes, and, hence, official unit histories were not submitted until the 355th Munitions Maintenance Squadron was moved to Takhli in November 1965 (the Board notes this is consistent with the time the Veteran was assigned to the 355th Combat Support Group). For the first year of operations at Takhli, the records showed that the function of going into Vietnam to "help stockpile" 355th munitions appears to have actually been the purview of the Maintenance and Storage Branch, but still did not imply that they sent any TDY, but only that they coordinated the flow of munitions to Takhli. There was no hint that anyone went TDY to Vietnam. Personnel records include a "Chronological Listing of Service," which reports that the Veteran's occupational specialty during his time in Thailand, from April 1965 to April 1966, was 46150, Munitions Specialist. However, his Performance Report for the period from March 1965 to March 1966 notes his specialty to be Recreation Specialist. His PAFSC (primary Air Force specialty code (AFSC)) and CAFSC (control AFSC) remained 46150 (munitions specialist), but his DAFSC (duty AFSC) was 74151, Recreation Specialist. The comments of the reporting official referred to duties involving monitoring and supervision of recreation activities. The Air Force Archivist added that there was no implication or hint that any 355th munitions personnel were sent to Vietnam, but only that they coordinated the flow of munitions to Takhli. In sum, there is no evidence that would tend to corroborate the Veteran's assertion that he was sent into Vietnam to assist with munitions transfer and storage. The Veteran also contends that on his way from the Philippines to Thailand, his airplane few into Saigon, where they remained for a couple of days, before proceeding to Thailand. The Veteran testified at his DRO hearing that at that time, every incoming flight to the region landed in Saigon, because at the time, there were only a few military personnel being brought in at a time, and so they had to drop off Army and Marine personnel in Vietnam first. In support, he points to an excerpt from an unidentified book concerning aircraft used in Vietnam. The excerpt noted that C-130 aircraft served as the workhorse for tactical airlift operations in Southeast Asia. "Assigned to bases in Taiwan or the Philippines, C-130s shuttled supplies into South Vietnam daily, and provided a logistical channel for the distribution of troops and supplies throughout South Vietnam." There is no support in the file for the assertion that Saigon, which was considered to be at war at the time, was a central landing point for further travel throughout Southeast Asia. Indeed, the article submitted by the Veteran suggests that bases in Taiwan or the Philippines were actually the "hub" points for traffic to other points; in this case, the Veteran traveled from the Philippines. While troops may have been flown internally to different parts of Vietnam, there is no indication that it was a through stop to other locations in Southeast Asia. The Board has been unable to locate any information which would indicate that even when the troop build-up was relatively low, there were insufficient numbers going to Vietnam to fill up a transport plane, or which otherwise suggests that Air Force personnel assigned to bases in Thailand stopped in Vietnam on the way. Logically, it seems unlikely that airplanes carrying troops to Air Force bases in Thailand would first stop in a war zone, where the risk of attack would be substantially higher than in neutral territory, without some compelling reason. Thus, there is no evidence that tends to corroborate his assertions that he was physically present in Vietnam, nor is such consistent with the available official record. The Veteran also contends that he was exposed to Agent Orange while flying aboard C-130 aircraft, which he states were being used to spray Agent Orange. He said he saw the saw the pumps inside the airplanes. However, according to a report on the VA internet website, designated C-123 Provider aircraft were used to spray Agent Orange, and it was not until the end of the spraying campaign in 1971 that the remaining C-123 planes were reassigned. Agent Orange Residue on Post-Vietnam War Airplanes, VA Public Health Military Exposures (http://www.publichealth.va.gov/exposures/agentorange/residue-c123-aircraft.asp). Finally, the Veteran's representative contends that exposure to herbicides is also conceded by the Department of Defense (DoD) for VA purposes for any service personnel who served in Thailand on Royal Thai Air Force Bases, including Takhli, near the air base perimeter anytime between February 28, 1961, and May 7, 1975. Therefore, it is contended that service connection should be granted because the installation where the Veteran arrived is listed as and conceded as being a place where Veterans were exposed to herbicides. This not strictly accurate, however. There is, in fact, no legal presumption of exposure to Agent Orange based on service in Thailand during the Vietnam era. The Agent Orange presumptions were based on the widespread tactical use of Agent Orange in Vietnam. According to the Project CHECO Southeast Asia Report: Base Defense in Thailand, produced during the Vietnam era, tactical herbicides were not used in Thailand. See Memorandum for Record, published in the M21-1 Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.r. There was only sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Id. Therefore, if a Veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Id. The Air Force specialties were identified as security policeman and security patrol dog handler, as well as members of the security police squadron. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. Otherwise, if there is credible evidence that the Veteran was near the air base perimeter, such as shown by evidence of daily work duties or performance evaluation reports, exposure may be conceded. Id. Here, there is no evidence, including testimony or performance evaluation reports, indicating the Veteran's daily work duties were on the base perimeter. Based on the foregoing, the Board finds that the Veteran's statements that he was exposed to Agent Orange during service are uncorroborated, and are not consistent with the official evidence, including his personnel records. The official records are more probative and credible than the Veteran's statements which, while sincere, concern events that occurred decades in the past, and these records do not tend to support his allegations of presence in Vietnam, or actual exposure to Agent Orange. Therefore, presumed or actual exposure to dioxin-containing herbicides, including Agent Orange, has not been demonstrated. The Veteran also contends that he was exposed to numerous other toxic substances in the course of his duties as a munitions handler, and, later, as an Explosives Ordnance Disposal (EOD) specialist. He states that he handled all munitions associated with fighter type aircraft, including GP bombs, cluster bombs, air to air missiles, 20 mm cannon ammunition, small arm ammunition, jet starter cartridges and more. During his second enlistment, he was in EOD school, and exposed to chemicals, while going through chemical weapons disposal training. He said that the instructors used real chemicals. During this time, he was responsible for the burning of small arms ammunition, outdated or damaged starter cartridges, and other munitions and ordnance that were outdated or damaged. He worked with all weapons systems permitted with a Top Secret security clearance. He said that safety was not so well regulated back then, and when was subjected to smoke and fumes from these and other items being burned or disposed of by detonation or dilution. Personnel records, especially the performance evaluations, document that the Veteran was involved in inspecting, assembling, maintaining, delivering, storing, reconditioning and destroying various munitions, including toxic munitions, and that he decontaminated areas and equipment exposed to toxic and radioactive materials. It was also noted, in April 1964, that he had been outstanding in observing safety regulations involved in the handling of all munitions. This indicates that safety regulations were in effect. The Veteran has been unable to provide information specific enough for the particular substances to which he was exposed to be identified. In this regard, his most recent statement, in June 2013, while limiting the categories of weapons, still did not identify the specific weapons. The Air Force Armament Museum has indicated that the "exact item" (munition identity) was needed in order to determine its configuration and thereby the chemicals/toxins it housed. It was not specific enough to only identify a munition type, e.g., cluster bomb or GP bomb. A June 2013 letter advised the Veteran of this negative development. The Veteran was provided a VA examination in June 2013. The examiner included relevant excerpts from recent VA medical records, which include a March 2012 entry showing that the Veteran had been diagnosed with cancer at the base of his tongue. The examiner explained that based on the available evidence, it was unlikely that either of his head or neck cancers would be related to some type of exposure during service. He had a long history of smoking and excessive alcohol intake, both of which were known to be strong and common causal risk factors for the development of head and neck cancers. The second cancer could also be related in part to the radiation for his first cancer. If specific known toxins that the Veteran was exposed to were identified, the opinion could be revisited on that basis, but would be unlikely to be changed, given his smoking and alcohol histories. This is consistent with the July 1992 letter from T. Canty, M.D., radiation oncologist, who participated in the Veteran's initial treatment for laryngeal cancer. Dr. Canty wrote that the Veteran continued to smoke 3 packs of cigarettes per day and drink a fifth of scotch daily. He said that the disease was "obviously" related to these factors. Dr. Canty also noted that an uncle and aunt of the Veteran's had had throat cancer. Other physicians noted the many year history of smoking and drinking. While these are undoubtedly very difficult habits to break, the medical evidence of record links them to the onset of the Veteran's cancer. There is no medical evidence indicating that the Veteran's in-service exposures resulting from his munitions work are causally implicated in his throat cancers. Although the Veteran states that he developed cancer or manifested throat cancer about 20 years earlier than "normal," there is no evidence in support of this assertion. This, as well as the cause of cancer, are both complex matters requiring medical evidence to establish, and beyond the competence of the Veteran. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (a layman is not competent to offer a diagnosis or medical opinion, where medical expertise is required). The only medical evidence of record to address the etiology of the Veteran's cancers attributes the cause to his past history of cigarette smoking and heavy alcohol use. Thus, in sum, although laryngeal cancer is presumptively associated with Agent Orange exposure, the weight of the evidence establishes that the Veteran did not have exposure to dioxin-containing herbicides in service. Any toxic substances or gases he was exposed to as a Munitions Specialist and Munitions Disposal Specialist have not been medically linked to his throat cancers, and neither the Board nor the appellant possesses the necessary medical expertise to contradict the medical evidence. See Woehlaert; Jones v. Principi, 16 Vet. App. 219, 225 (2002) (Board must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision); Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment). Service connection must be denied. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. The preponderance of the evidence, however, is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for throat cancer, to include laryngeal carcinoma status post laryngectomy, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs