Citation Nr: 18142981 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-10 768 DATE: October 18, 2018 ORDER Entitlement to service connection for left leg osteosarcoma is denied. REFERRED The issue of entitlement to service connection for lung cancer was raised during the appellant’s June 2018 hearing testimony. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The Veteran was deployed to Thailand in December 1972 as a fuel specialist and the evidence preponderates against a finding that he had service on the landmass or inland waterways of the Republic of Vietnam. 2. Resolving reasonable doubt in the Veteran’s favor, the Board finds that he served near the perimeter of Takhli Royal Thai Air Force Base in 1972, and is presumed to have been exposed to herbicide agents. 3. A left leg osteosarcoma was not manifest in service or to a compensably disabling degree within one year of separation from active duty, and it is not attributable to service, including in-service exposure to herbicides.   CONCLUSION OF LAW A left leg osteosarcoma was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to September 1966, and from June 1971 to July 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2018, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran asserts that residuals of a left leg osteosarcoma are related to herbicide exposure during service while stationed on temporary duty in Thailand. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease 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 (10 percent disabling) within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a presumptive basis for certain disabilities resulting from exposure to an herbicide agent. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, 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). This list of diseases specifically excludes osteosarcomas. 38 C.F.R. § 3.309 (e). For service in Thailand during the Vietnam War, there is no statutory or regulatory presumption of exposure to an herbicide agent during such service. Nonetheless, special consideration will be accorded and exposure herbicide agents will be conceded if the veteran served at the Royal Thai Air Force Bases at U-Tapao, Ubon, Nakhom Phanom, Udorn, Takhli, Korat, or Don Muang; and served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the base perimeters. See VA Adjudication Procedures Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. Service near a base perimeter may be shown by a veteran's military occupational specialty, daily work duties, performance evaluations, or other credible evidence. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Osteosarcoma cancer is not a disability that is presumptively associated with Agent Orange exposure; however, the Veteran may establish service connection as related to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran contends that his osteosarcoma is related to his exposure to herbicides in Thailand. The Veteran has submitted records that detail how he was stationed at Royal Thai Air Force Base Takhli for temporary duty beginning in December 1972. The Veteran has also submitted testimony regarding his duties as a fuel specialist and that he regularly served near the perimeter of the base during his time there. The Veteran’s testimony regarding service on the perimeter is credible and thus exposure is conceded. The fact that the Veteran is presumed to have been exposed to herbicides in Thailand is immaterial though, as osteosarcoma is not a presumptive disease according to 38 C.F.R. § 3.309 (e). In fact, an osteosarcoma is specifically singled out as being specifically listed as a type of sarcoma that is not included. 38 C.F.R. § 3.309 (e). Further none of the other presumptions related to types of diseases are applicable. The Veteran’s service treatment records do not indicate a diagnosis of, complaint of, or treatment for an osteosarcoma during service or within one year following separation from active duty. Although the Veteran has a current diagnosis of residuals of a left leg osteosarcoma, this disability was first presented more than 10 years following discharge from active duty. The passage of time following service negates any presumption of service connection provided under 38 C.F.R. § 3.309. Moreover, the absence of any diagnosis or treatment for many years after service is probative evidence against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Notwithstanding the foregoing presumptive service connection provisions, the Veteran may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the preponderance of the most probative evidence is against finding a causal relationship between the claimed disorder and any other incident of active service. The Veteran has been diagnosed with left leg osteosarcoma and has residuals of treatment for this disorder since 1987. The Veteran does not have any competent evidence of his osteosarcoma being present inservice, or that it was compensably disabling within a year of separation from active duty. The Veteran also has not submitted probative evidence of a connection between his service and his osteosarcoma. Admittedly, the Veteran has submitted a medical opinion from Dr. Jeffrey Eckardt who noted his care of complications due to an osteosarcoma since 1987. Dr. Eckardt further states that it is as least likely as not that the Veteran was diagnosed with osteosarcoma due to his exposure to Agent Orange. Significantly, Dr. Eckardt provided no rationale for his opinion. As such, this opinion is not an adequate evidence upon which to grant service connection. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (“[e]xamination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion” even when the rationale does not explicitly “lay out the examiner’s journey from the facts to a conclusion”). Moreover, Dr. Eckardt’s opinion is outweighed by the facts of the case and controlling regulation. As noted, the provisions of 38 C.F.R. § 3.309(e) specifically excludes osteosarcomas. This exclusion is based on findings by the National Academy of Science which found that while certain cancers are related to Agent Orange exposure, there is inadequate or insufficient evidence to determine whether there is an association between the chemicals of interest and any other specific type of cancer, to specifically include bone cancers, i.e. osteosarcomas. 79 Fed.Reg. 20312 (April 11, 2014). Given the exhaustive study performed by the National Academy that is fully supported by scientific rationale, and the absence of any rationale provided by Dr. Eckardt, the Board finds that the preponderance of the most probative evidence is against the claim. The Veteran has continually maintained that his exposure to herbicides caused his osteosarcoma, and has submitted numerous personal statements to that effect. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of osteosarcoma, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). For the foregoing reasons, the Board finds that the preponderance of the evidence is against entitlement to service connection for osteosarcoma of the left leg. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine but because the preponderance of the evidence is against the claims, the doctrine is not for application. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel