Citation Nr: 18143196 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-08 280 DATE: October 18, 2018 ORDER Entitlement to service connection for residuals of cancer of the larynx, status-post right vocal cord lesion excision, is granted. FINDINGS OF FACT 1. The evidence as to whether the Veteran was directly exposed to herbicide agents during service is in equipoise. 2. The Veteran is currently diagnosed with cancer of the larynx, status post right vocal cord lesion excision. CONCLUSION OF LAW The criteria to establish direct service connection for cancer of the larynx, status-post right vocal cord lesion excision have been met. 38 U.S.C. §§ 1110, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Navy from March 1965 to March 1969. This matter comes before the Board of Veterans’ Appeals from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Paul, Minnesota. The Board recognizes that the RO previously denied the Veteran’s service connection claim for cancer of the larynx in a November 2008 rating decision, at which time his service personnel records were not associated with his claims file. Review of the file however reflects that subsequent to the issuance of that rating decision, his service personnel records were received from the National Archives and Records Administration and added to the claims file. Although new, these service records are relevant to the claim, and as such, the Board will reconsider the claim rather than consider it on a new and material basis. 38 U.S.C. § 3.156(c) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). Service Connection Service connection may be granted for a disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2017). 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 incurred or was aggravated in service. 38 C.F.R. § 3.303. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with an appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he has larynx cancer that resulted from his exposure to herbicide agents while aboard USS Topeka during the Vietnam Era. The Board initially finds that there is evidence of a current disability, as the Veteran’s medical evidence reflects a current diagnosis of cancer of the larynx. See October 2008 Medical Treatment Record from Chief of Otolaryngology. 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 the veteran was not exposed to an herbicide agent during such service. 38 C.F.R. § 3.307 (a)(6)(iii). In this case, the Veteran’s DD-214 does not indicate that the Veteran had service in the Republic of Vietnam, and although it shows service medals that demonstrate he served in support of the operations in Vietnam, it does not show that he was stationed in the Republic of Vietnam. Moreover, the Veteran, himself, does not contend that he went ashore in Vietnam during service. Therefore, the regulatory presumption of exposure to herbicide agents does not apply here. 38 C.F.R. §§ 3.307, 3.309. The Board recognizes the Veteran’s argument that he should be presumptively service connected for larynx cancer based on his service aboard the USS Topeka, which anchored in the Danang Harbor. The Board however need not consider in this case whether the USS Topeka was located in the offshore "blue water" of Vietnam or in the inland waterway system or "brown water" of Vietnam. This is so because the Board is granting this case on a direct service connection basis as decided below. Notably, when entitlement to a regulatory presumption of service connection for a given disability is not found, a claim must be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1143-1044 (Fed. Cir 1994). In February 2011, the Veteran submitted a statement explaining that his herbicide exposure occurred during prolonged contact with contaminated clothing of thousands of ground-based personnel. Although the Veteran’s military occupational specialty (MOS) was the equivalent of a sheet metal worker, he indicates that he was also assigned to the laundry department of the USS Topeka. The Veteran described this as, “doing the laundry of land based personnel” in the laundry department which was a, “place where high heat and humidity were present [daily], increasing the plausibility of exposure via inhalation.” The Veteran also reported that exposure could have come from his daily use of the water in the laundry department. The Veteran further indicated that when he served aboard the USS Topeka, the ship served as an “R&R platform for Vietnam ground troops.” Of record is a Letter of Commendation dated in June 1966 addressed to the Veteran and in that letter, the commanding officer described the USS Topeka at that time as a home away from home for a thousand of the nation’s fighting men. In an effort to corroborate the Veteran’s claim of exposure to herbicide agents, the RO contacted the Joint Services Records Research Center (JSRRC). According to a November 2014 memorandum, the JSRRC coordinator indicated that there was insufficient information to allow for a meaningful search and confirmation of the Veteran’s service. Notably, the JSRRC did not conclude that there was affirmative evidence that the Veteran was not exposed. The Board finds the Veteran’s lay assertions regarding his exposure to herbicide-laden clothing of land-based servicemen to be competent evidence. See e.g. Layno v. Brown, 6 Vet. App. 465 (1994). Resolving any doubt in his favor, the Board also finds the Veteran’s lay reports in this regard to be credible as they are consistent with the circumstances of his service. 38 U.S.C. § 1154(a) (2012). Therefore, under the particular circumstances of this case, the Board determines that the evidence as to whether the Veteran was directly exposed to herbicide agents is at least in equipoise. This determination is limited to this specific Veteran, based on the facts presented. Ins this regard, the Veteran’s competent and credible assertions concerning the conditions and circumstances of his service, along with the additional evidence of record, puts the evidence in equipoise. Notably, cancer of the larynx is among those diseases associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.307(a)(6). As the Board has concluded that the Veteran was more likely than not exposed to herbicide agents during service and his medical records show a current diagnosis of a disease presumptively associated with herbicide agent exposure, namely cancer of the larynx, entitlement to service connection for cancer of the larynx is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Counsel