Citation Nr: 1752910 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-36 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for mucoepidermoid carcinoma (salivary gland cancer), to include as due to exposure to herbicide agents. 3. Entitlement to service connection for cancer of the left thigh, to include as due to exposure to herbicide agents or as secondary to prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a February 2017 video conference hearing. A transcript of that proceeding is associated with the claims file. The issues of entitlement to service connection for mucoepidermoid carcinoma (salivary gland cancer) (to include as due to exposure to herbicide agents), and entitlement to service connection for cancer of the left thigh (to include as due to exposure to herbicide agents or as secondary to prostate cancer), are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran was diagnosed with prostate cancer; and it is at least as likely as not that he was exposed to herbicide agents during his active duty service in Thailand. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that he was exposed to herbicide agents during his active duty service in Thailand and that, consequently, he is entitled to service connection for his prostate cancer based on regulatory presumptions. See, e.g., February 2017 hearing testimony. The Board has thoroughly reviewed all of the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The regulations pertinent to this decision were provided to the Veteran in the December 2013 statement of the case. Since he has had adequate notice of the pertinent laws, they will not be repeated here in full. The Veteran primarily alleges that he was exposed to herbicide agents during his active duty service in Thailand. VA's Adjudication Procedures Manual requires special consideration of herbicide exposure on a factual basis for veterans whose duties placed them on or near the perimeters of Thai military bases during the Vietnam era, to include the U-Tapao Royal Thai Air Force Base (U-Tapao RTAF base or U-Tapao). See M21-1, IV.ii.1.H.5.a. Specifically, those protocols direct that if a veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged. See id. at IV.ii.1.H.5.b. The Veteran was diagnosed with prostate cancer. See, e.g., September 2010 private treatment records. The dispositive issue in this case is whether he was exposed to herbicide agents during active duty service. The Veteran primarily contends that he was exposed to herbicides from his regular work duties on or near the U-Tapao RTAF base perimeter. Specifically, in various statements and hearing testimony, he asserted that his military occupational specialty (MOS) as a welder involved multiple instances of work repairing fences on or near the base perimeter. He also stated that he personally interacted with military personnel who conducted herbicide spraying soon before they did so, and that he returned to duty on or near the base perimeter soon after such spraying. The Board finds that the Veteran's hearing testimony and other statements of record are very credible, as they are supported by contemporaneous military personnel records confirming his Thailand service from October 1973 to November 1974 at U-Tapao. His service personnel records (including a very positive performance report from the relevant time period) also corroborate his statements about his MOS as a metal processing specialist during this period of active duty service at U-Tapao. Moreover, his DD Form 214-3 from his period of active duty service from July 1971 to April 1975 shows that he took a "Security of Installations and Work Parties" course in October 1973, during his verified period of service at U-Tapao. The fact that he was trained specifically on installation security confirms his testimony that his work involved maintaining perimeter fencing. Considering the Veteran's MOS and his credible testimony before the Board, the weight of the evidence is at least in equipoise regarding whether his duties frequently took him near the perimeters of U-Tapao RTAF base. Consequently, the Board finds that based on the particular circumstances of this case and in light of all of the supporting evidence, this Veteran was likely exposed to herbicide agents during his exemplary service in Thailand during the Vietnam era. As prostate cancer is a presumptive condition, no nexus opinion is needed. The Veteran's claim of entitlement to service connection for prostate cancer is granted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). ORDER Entitlement to service connection for prostate cancer as due to exposure to herbicide agents is granted, subject to controlling regulations governing the payment of monetary awards. REMAND In this case, VA's duty to assist in the development of the claims of entitlement to service connection for left thigh cancer and entitlement to service connection for mucoepidermoid carcinoma has not been satisfied. Therefore, a remand is necessary for further development of those claims. First, additional, relevant treatment records from MacDill Air Force Base (including the Moffitt Cancer Center and the 6th Medical Group) ("MacDill") likely exist but have not been obtained. Specifically, the most recent treatment record in the claims file from MacDill is a September 2012 Surgical Pathology Final Report submitted by the Veteran in February 2017. That report contains a final diagnosis of his left thigh cancer, characterizing it as a "[l]ipotomous tumor, pending molecular testing" (emphasis added). A comment in the report explained, "Thinly partially encapsulated lipotamous tumor with attached benign fibromuscular tissue is present predominantly displaying a histology compatible with lipoma, however, due to the presence of a few thin fibrous septa and occasionally enlarged nuclei, molecular testing is pending for confirmation (emphasis added)." Treatment records regarding the referenced, pending molecular testing are not of record. Such records have bearing on the specific diagnosis of the Veteran's form of left thigh cancer, which is a key issue in this case in light of other treatment records concluding, based on objective evidence such as imaging, that the mass may have constituted liposarcoma. See, e.g., MacDill October 2010 imaging report (finding the Veteran's left thigh mass was compatible with either a lipoma or a low-grade liposarcoma); April 2012 VA General Surgery Consult Note (finding the Veteran's left thigh mass appeared to be a liposarcoma based on imaging). Liposarcoma is a type of cancer that VA recognizes as a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). Moreover, VA treatment records referencing the September 2012 MacDill pathology report noted that the Veteran was scheduled for a January 2013 follow-up appointment at MacDill. However, post-September 2012 treatment records from MacDill are not of record. Upon remand, the RO must attempt to obtain all outstanding treatment records from VA facilities and MacDill. Then, the RO must attempt to determine whether the final left thigh mass diagnosis may in fact be liposarcoma, based on the referenced, pending molecular testing and any other relevant findings. Second, as discussed in the prostate cancer decision above, the Board concedes in-service herbicide exposure. Mucoepidermoid carcinoma (salivary gland cancer) and lipoma are not presumptively related to exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Nonetheless, the Veteran may prevail on a direct service connection theory. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). A VA medical opinion is needed to determine whether either the Veteran's salivary gland cancer or his left thigh cancer was related to service, to include his conceded in-service herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records from the Tampa, Florida VA Medical Center (including all associated outpatient clinics) from November 2013 to the present. 2. Obtain and associate with the claims file all outstanding treatment records from the MacDill Air Force Base (including the Moffitt Cancer Center and the 6th Medical Group) from September 2012 to the present. 3. If treatment records obtained in response to Instructions 1 and 2 above show a left thigh diagnosis of liposarcoma, or any other condition listed under 38 C.F.R. § 3.309(e), then the RO need not proceed to Instruction 4 below as to the left thigh cancer claim only. 4. Then, ONLY AFTER completing the instructions above, to the extent possible, forward the claims file to an appropriate examiner for a VA medical opinion. The entire claims file, including this remand, must be reviewed by the examiner. Then, the examiner should respond to the following questions: a. Is it at least as likely as not (50 percent or greater) that the Veteran's left thigh cancer was incurred in or is otherwise related to service, including his conceded exposure to herbicide agents? b. Is it at least as likely as not (50 percent or greater) that the Veteran's mucoepidermoid carcinoma was incurred in or is otherwise related to service, including his conceded exposure to herbicide agents? The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 5. After completing the above and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs