Citation Nr: 1625461 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 11-30 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder. 2. Entitlement to service connection for lung cancer, as due to herbicide exposure. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran requested a Board hearing in his November 2011 substantive appeal. Such hearing was scheduled for May 2016. Nevertheless, in a May 2016 statement, his representative indicated that the Veteran could not attend the scheduled hearing. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e). The Veteran filed his original claim only for service connection for PTSD. The scope of a mental health disability claim, however, includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Accordingly, the Board has recharacterized the issue on appeal. FINDINGS OF FACT 1. The weight of the relevant medical and lay evidence is against a finding that the Veteran has a current mental health disability. 2. Resolving all doubt in the Veteran's favor, the Veteran has non-small cell (squamous cell carcinoma) of the lung that is presumed to be related to exposure to herbicide agents during his active military service in Thailand. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303 (2015) 2. The criteria for entitlement to service connection for lung cancer have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his service connection claims in June 2010, prior to the initial adjudication of the claim. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. This includes private treatment records. VA provided a VA examination in November 2010 to determine the nature and etiology of the Veteran's claimed mental health disability. In his December 2010 notice of disagreement, the Veteran stated that there are many types of stress that may not fit a diagnosis, but are still real. To the extent that the Veteran is questioning the findings of the VA examination, the Board notes that, as explained below, the Veteran is not competent to diagnose a specific mental health disability. Otherwise, there is no indication that the November 2010 examination is inadequate or that its findings do not reflect the Veteran's current disability picture. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's claim. Any errors committed were not harmful to the essential fairness of the proceedings, and the Veteran will not be prejudiced by a decision. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.103(c)(2), 3.326; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Bryant v. Shinseki, 23 Vet. App. 488 (2010); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). II. Legal criteria and Analysis Service connection will be granted for 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). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Acquired Psychiatric Disorder The Veteran contends that his claimed mental health disability is related to two events in service. In a statement dated May 2010 (received July 2010), he stated that, in June 1969, he went home on leave and was shocked to learn that his best friend had been killed in Vietnam. He added that he still thought of his friend. In a separate statement dated June 2010 (received July 2010), he recalled the particulars of a disciplinary action against him, in which he felt racially discriminated. The Veteran underwent a VA psychiatric examination in November 2010. The examiner noted the two aforementioned stressors and indicated that the Veteran continues to experience sadness, nostalgia, and anger relating to the death of his friend, feelings that are amplified by the presence of his friend's son in routine social situations. The examiner, however, concluded that these feelings do not reach the intensity of the social-vocational impact required for a formal mental health diagnosis. The examiner further indicated that the Veteran was administered a measure to interrogate depressive symptoms and his score in this measure did not fall in a clinically significant range. Lastly, the examiner indicated that the Veteran did not report mental health symptoms relating to PTSD that are causing clinically significant effects in emotional, social, or vocational functioning. In his December 2010 notice of disagreement, the Veteran stated that there are many types of stress that may not fit a diagnosis, but are still there. The Veteran is competent to report his observable symptoms and history, including the onset and timing of mental health symptoms, and such reports must be considered. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nevertheless, he is not competent to diagnose a specific psychiatric condition or the cause of the related symptoms, as this requires testing and medical expertise. Id. As such, the Veteran's statement in this regard is not entitled to any weight. The Board has also reviewed relevant VA treatment records and they do not show a diagnosis of, or treatment for, a mental health disability. Rather, those records show that the Veteran underwent screening for depression and/or PTSD in four different occasions during the appeal period. Significantly, all screenings were negative. See VA treatment records from September 2011, July 2013, July 2014, and May 2015. At the most, these records show complaints of stress related to financial concerns and his cancer treatment. See VA treatment records from October 2010 and December 2012. In sum, the most probative evidence shows that the Veteran does not have a current mental health disability during or proximate to the appeal period. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there was no current disability); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that the current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding "that when the record contains a recent diagnosis of a disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency"). Because the preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claim must be denied. Lung Cancer The Veteran is also claiming service connection for lung cancer, as due to herbicide exposure in Thailand. See June 2010 claim. VA treatment records, to include one dated June 9, 2010, show a diagnosis of non-small cell (squamous cell carcinoma) of the lung. Certain diseases associated with exposure to herbicide agents, including respiratory cancers, will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran has claimed exposure to herbicides while stationed in Thailand. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, IV.ii.1.H.5 ("M21-1"). 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. M21-1, IV.ii.1.H.5.b. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. Id. In this case, the record shows that the Veteran served in the U-Tapao Airfield, in Thailand, from April 1969 to May 1969, and in October 1969. In a statement received March 2016, the Veteran indicated that he was part of the ground crew for a tanker aircraft, that he was housed at the base and allowed to go off base when off duty, and that he went to town several times by way of the front gate. The Veteran submitted this statement in support of the proposition that he crossed in and out of the base perimeter during his tours of duty in the U-Tapao airbase. The Veteran's military occupational specialty was jet aircraft mechanic. See DD Form 214. The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases. See, e.g., March 2006 letter from Department of the Air Force (verifying service on TDY to U-Tapao Airfield, Thailand from 17 April 1969 to 15 May 69). He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. Further, he has stated that he crossed the base perimeter several times, which the Board finds he is competent to so report. There is no evidence in the file to doubt this statement and so the Board also finds it credible. In light of the above, the Board finds that the Veteran had service at U-Tapao Airfield, Thailand, and resolves all doubt in favor of the Veteran and also finds that he served near the perimeter of the base. As such, he is presumed to have been exposed to herbicide exposure. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Post-service treatment records confirm the Veteran's diagnosis of lung cancer. Therefore, service connection is warranted for lung cancer on a presumptive basis due to herbicide exposure. 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for lung cancer (non-small cell) is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs