Citation Nr: 1402649 Decision Date: 01/17/14 Archive Date: 01/31/14 DOCKET NO. 06-24 838A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for squamous cell lung cancer, to include as secondary to in service Agent Orange exposure. 2. Entitlement to service connection for polycythemia, to include as secondary to squamous cell lung cancer. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1976. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Order, the Court endorsed a June 2012 joint motion for remand (JMR), which vacated the portion of the September 2011 Board decision that denied the claims for service connection for squamous cell lung cancer and polycythemia, and remanded the matter for compliance with the instructions in the joint motion. In September 2011, this matter came to the Board on appeal from a July 2005 rating decision by the RO in Cleveland, Ohio. The Veteran presented testimony at a Board hearing in July 2007. A transcript of the hearing is associated with his claims folder. This matter was remanded in November 2007 and September 2013 for further development. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Lung cancer was not first manifested during active duty or within one year of the Veteran's separation from service, and the preponderance of the evidence is against a finding that the current disability is related to military service, to include alleged herbicide exposure therein. 2. Polycythemia was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service, to include as secondary to a service connected disability. CONCLUSIONS OF LAW 1. Squamous cell lung cancer was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Polycythemia was not incurred in or aggravated by the Veteran's active duty service, nor is it secondary to a service connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a July 2004 letter. Although the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection were denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Nonetheless, the Board notes that the RO sent the Veteran a November 2007 correspondence that fully complied with Dingess. The elements of the appeal, as well as the types of evidence that would contain pertinent findings, were discussed during the Travel Board hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). There are accordingly no deficiencies of notification in this case, nor has the Veteran argued otherwise. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4) (2013). In this case, VA and private medical records concerning the claimed disabilities have been obtained to the extent possible, and there is no indication of additional relevant treatment records concerning this disability. As such, the RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the most probative evidence of record does not indicate that the Veteran's lung cancer and associated polycythemia are directly related to service. Thus, the Board believes that there is no credible and probative evidence suggesting an association a current disability related to lung cancer and any event, injury, or disease in service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with these claims. In October 2013, VA received a detailed response from the Air Force Historical Research Agency (AFHRA), including a detailed unit history of those who served at Don Muang Air Force Base in Thailand, to determine whether the Veteran was exposed to Agent Orange during service (including stopovers in Vietnam). Although the Board had requested that the JSRRC also be contacted with respect to the nature of any herbicide usage at Don Muang AFB, the Board finds that because of the very detailed and thorough response from the AFHRA, and the subsequent readjudication of the claims, there has been substantial compliance with its and November 2012 and September 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The AFHRA response included a Word document describing the detailed unit histories of those who served at Don Muang and the Board finds that this evidence fulfilled the purpose of and substantially complied with the September 2013 remand directives. Another remand would serve no useful purpose under the circumstances. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In the instant case, there is no presumed service connection because lung cancer was not medically diagnosed within one year of discharge. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2013), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Prostate cancer is listed under 38 C.F.R. § 3.309(e) as a disease associated with herbicide exposure. The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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)(iii) (2013). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). "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) (2013). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. In short, the Veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S.Ct. 1002 (2009). Additionally, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA 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 evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309(e) (including respiratory cancers). Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). Factual Background and Analysis Lung Cancer The Veteran contends that he was exposed to Agent Orange during his service in Korea and/or Thailand. Alternatively, he contends that he set foot in-country in Vietnam. In this case, there is no question that the Veteran has lung cancer, thus, the key issue before the Board is whether the Veteran's lung cancer was directly or presumptively related to his military service. In this case, the Veteran's service records do not indicate that he had service in the Republic of Vietnam. The service records indicate that he served with the 5th Mobile Communications Group stationed at Robins Air Force Base (AFB) from October 17, 1967 through August 7, 1968. Travel orders dated January 27, 1968 through April 29, 1968 indicate that the Veteran had temporary Duty to Osan AFB in Korea. The Veteran also testified that that he was stationed in Korea at Kimpo AFB from January or February 1968 to approximately August 1968. The Veteran indicated that he did not serve at Osan AFB, but rather was assigned to Kimpo AFB for his time in Korea. He noted that Kimpo AFB was approximately 5 miles from the Demilitarized Zone (DMZ) and that his duties were that of an Air Traffic Controller. The Veteran's DD 214 reflects that his primary specialty in the service was Air Traffic Control Technician. In his testimony before the Board, the Veteran also indicated that he took many trips to the DMZ during his tour in Korea. He indicated that he and several of his fellow servicemen would use these visits as outings to shop and visit the posts along the DMZ. He also indicated that he served in Thailand at Don Muang Royal Thai AFB during the Vietnam War. He contends that either flying to or from Thailand, he had a stopover in Vietnam and got off the plane. In support of his claim, the Veteran submitted the statement of a fellow serviceman dated July 2006. This serviceman indicated that he was assigned to the group from Robins AFB in Georgia that was sent TDY to Osan AFB in Korea. He noted that when the group deplaned at Kimpo AFB, they were informed that they would be staying there, rather than going on to Osan AFB. He also indicated that the Veteran was in this group. During the six months that they were at Kimpo, this serviceman indicated that many trips were made to the DMZ on tours. The Veteran also submitted treatment records from Dr. S.J.O. and Grant Riverside Methodist Hospital. These records are thorough in documenting the treatment of the Veteran's disabilities. However, they fail to provide evidence that the Veteran's disabilities were incurred in service, or that the Veteran was exposed to Agent Orange during service. At the July 2011 Board hearing, the Veteran testified that he was diagnosed with lung cancer in 2000. When asked what his treating physicians thought regarding the etiology of the disability, the Veteran responded by saying that he was a smoker. With regards to his alleged stop in Vietnam while on his way home from Thailand, the Veteran testified that it was not for very long (only a couple of hours). However, he stated that he did get off the plane. He also testified that he actually witnessed Agent Orange being sprayed approximately once per week. He stated that he saw a trailer with a big tank on it, and spraying out the back. He reported that this took place just inside the perimeter of the grounds, in order to keep forestry down around the runway. He denied ever having participated in any of the spraying. In order to warrant presumptive service connection for Agent Orange exposure in the Republic of Korea, the Board notes that the Department of Defense (DOD) has identified specific units that served in areas along the demilitarized zone (DMZ) in Korea where herbicides were used between April 1968 and July 1969. VBA's Adjudication Procedure Manual, M21-1 provides that VA is to concede exposure to herbicides on a factual basis if a Veteran alleges service along the DMZ in Korea, and was assigned to one of these units between April 1968 and July 1969. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l). If the Veteran was not assigned to one of the listed units, then a request is to be submitted to the JSRRC for verification of the location of a Veteran's unit. In this regard, the Board notes that the Court has consistently held that the evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1, are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). In this case, the Veteran's unit is not listed among those delineated in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l). Consequently, the Board remanded the claim with directives to the RO to make a request to the JSRRC for verification of the location of a Veteran's unit. In April 2010, the JSRRC responded that the available historical records did not document that members of the Veteran's unit performed duties along the DMZ. The JSRRC also stated that the records failed to document the departure or arrival of individual unit members or their personal travels. In the Veteran's May 2011 brief, he contended that the VA concedes exposure to herbicides if it can be proven that the Veteran spent time in the DMZ. However, in this case, the JSRRC was not able to substantiate the testimony of the Veteran (or the July 2006 correspondence from his fellow serviceman) that he served in the DMZ. Following the JMR, further development was performed to determine whether the Veteran may have been exposed to Agent Orange while serving in Thailand, and whether he stopped over in Vietnam enroute to or from Thailand as contended. In December 2012, VA requested that the Veteran submit specific dates and locations of exposure to Agent Orange, as well as the dates he alleged he stopped over in Vietnam. VA contacted the JSRRC and requested determination of whether the Veteran's flights enroute to and from Thailand had a stopover in Vietnam. The request was made to determine whether anyone from the 1965 Communications Squadron and 1974 Communications Group stopped in Vietnam. Research did not show that the Veteran stopped over in Vietnam, but the reports do not show flight information, including stopovers. Additionally, they were unable to identify the 2031 Communications Squadron documented in 1970. Later, the JSRRC was contacted to determine whether the 5th Mobile Group of the 1965 Communications Squadron and 1974 Communications Group stopped in Vietnam. The JSRRC response was that they were unable to confirm whether the Veteran had a layover in Vietnam, and his flight itineraries were not of record. In September 2013, VA contacted the Air Force Historical Research Agency to determine whether Agent Orange was present and sprayed at the Don Muang AFB in Thailand. In a response dated in October 2013, which included a photo of the Don Muang AFB in Thailand, the Air Force Archivist indicated: It didn't happen. Don Muang was a compound that sat in the Bangkok International Airport complex and therefore was the responsibility of the Thai Military and Police for base defense, which meant that the local USAF authorities had no responsibilities for any vegetation control at Don Muang, except for mowing the little bit of grass between their buildings. There was a chain link fence around the complex, but that was to deter theft and was not located near any jungle growing in Bangkok. I have attached a map of Don Muang, but remember, it sits amongst an industrial complex of the airport with a major highway on two sides of the base (the north and south side) a field on the other two sides (east and west) that had buildings on them. Please find attached a map of the cantonment area known as Don Muang Air Base, a Word document which is an official transcription of the official unit histories concerning the circumstances of the 631st Combat Support Group (the host unit at Don Muang) for the period in question, and a Word document consisting of an official transcript taken from the official unit histories at Don Muang of the herbicide use at Don Muang, meaning no herbicides at all, for the time period in question. Moreover, the Veteran's testimony at his Board hearing suggests that the physicians that diagnosed his lung cancer attributed the disability to the Veteran's habit of smoking. He admitted that the VA doctor at the Agent Orange registry examination facility could not say for certain whether his disabilities were caused by Agent Orange. As noted above, the archivist included a Word document including a transcript from the official unit histories at Don Muang and they showed no herbicide use at all. Importantly, these histories do not show that anyone from the 631st Combat Support Group were sent to Vietnam, and noted a few specific people (dog handlers, security police, escorts for the Bob Hope Christmas show, etc.) that were sent to Vietnam from Thailand. There is no indication that any air traffic controllers were sent to Vietnam from Don Muang, nor was the Veteran's name listed. Upon careful review of the evidence of record, the preponderance of the evidence is against finding that the Veteran served in-country in Vietnam, including any flight layovers, and is against any direct exposure to Agent Orange either in Korea or Thailand. The Veteran's claim for squamous cell lung cancer is based entirely on his alleged exposure to Agent Orange. Though the Board finds the Veteran to be largely credible and sincere in his own belief that he was either exposed to Agent Orange in Thailand or Korea or had a stopover in Vietnam, there is simply no record of either the Veteran's alleged layover in Vietnam, exposure at Don Muang AFB in Thailand, or his trips to the DMZ while stationed in Korea. Consequently, the preponderance of the evidence is against a presumptive finding of service connection based on exposure to Agent Orange. The Board finds that the Veteran's service personnel file, JSRRC responses, and report from the AFHRA archivist is the most probative evidence of record as to whether the Veteran either stopped over in Vietnam, or was exposed while serving in Korea or Thailand. Therefore, he cannot be presumed to have been exposed to herbicides in Thailand or Korea. The Veteran's service personnel records further demonstrate that he did not serve in the Republic of Vietnam, and the AFHRA report does not show that any air traffic controllers, including the Veteran, were sent to Vietnam while stationed at Don Muang in Thailand, and he is therefore not entitled to the presumption that he was exposed to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii). The Veteran has not contended that he personally sprayed Agent Orange while in Thailand or Korea, and the overwhelming evidence of record shows that the Veteran was not present in areas where Agent Orange or other herbicides may have been spread. The Board acknowledges the Veteran's sincere belief that he either had a layover in Vietnam or was directly exposed to Agent Orange while serving in Korea or Thailand, but finds that his personnel records, AFHRA, JSRRC, and other sources, significantly outweigh the statements made by the Veteran and his service buddy. As such, the preponderance of the evidence is against finding that the Veteran was exposed to herbicides, including Agent Orange, during service. Moreover, the Board notes that there are no findings attributed to lung cancer in the service treatment records, nor is there any competent medical opinion attributing his lung cancer to any incident of service. In reviewing the Veteran's testimony, it does not appear that he is alleging continuity-of-symptomatology; the Board nonetheless notes that the Veteran is not competent to provide an alternate theory of causation. Such an allegation of causation is different from descriptions of continuity of symptomatology, which in many instances a Veteran is competent to provide. See 38 C.F.R. § 3.159(a)(2); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (lay persons not competent to diagnose cancer). Consequently, the preponderance of the evidence is against a finding of service connection on a direct basis. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for squamous cell lung cancer must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Polycythemia The Veteran contends that his polycythemia is secondary to his lung cancer with right pneumonectomy. Because the Veteran's claim for service connection for lung cancer was denied, a service connection claim based secondarily on his lung cancer must also be denied. With regards to direct service connection, the service treatment records fail to reflect any findings attributed to polycythemia. The Veteran did not render any testimony that would support a theory of entitlement to service connection on a direct basis. Once again, the Veteran does not allege continuity-of-symptomatology or that his polycythemia is related to service on a direct basis. However, the Board notes that he is not competent to provide an alternate theory of causation. See Jandreau, supra. With no evidence of polycythemia in service and no nexus opinion linking it to an incident of service, the preponderance of the evidence weighs against the claim. See Gilbert v. Derwinski, supra. ORDER Service connection for squamous cell lung cancer is denied. Service connection for polycythemia is denied. ____________________________________________ A.C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs