Citation Nr: 18150356 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 15-03 934 DATE: November 15, 2018 ORDER Entitlement to service connection for lung cancer, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran died in February 2015; the appellant is the Veteran’s surviving spouse, who was substituted as the claimant. 2. The Veteran’s lung cancer did not manifest in-service, and is not shown to be causally or etiologically related to an in-service event, injury or disease, or to be related to exposure to herbicide agents. 3. The Veteran’s heart disability did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease, or to be related to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1966 to December 1970. The Veteran died in February 2015. See March 2015 Death Certificate. The appellant is the Veteran’s surviving spouse, and has been properly substituted in this case. See July 2015 Notification Letter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 (lung cancer) and June 2014 (heart disability) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran elected to have a hearing before a Decision Review Officer, but then subsequently requested an informal conference be held instead. See September 2014 Hearing Testimony. In May 2017, the appellant withdrew her request for a hearing before the Board. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the December 2014 statement of the case. The Board has reviewed these records and observes that they are cumulative, duplicative, or not pertinent to the issues on appeal addressed in the decision below. Service Connection Generally, to establish service connection a veteran must show: “(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 disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include cardiovascular-renal disease, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection may also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2, 4-D; 2, 4, 5-T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders, to include lung cancer and ischemic heart disease. See 38 C.F.R. § 3.309(e). VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA’s Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (M21-1) specifies when herbicide exposure may be conceded in certain cases where the veteran served in Thailand during the Vietnam era. Herbicide exposure may be conceded on a direct/facts-found basis if the veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence does not show that the Veteran was exposed to herbicide agents while stationed in Thailand. The claims on appeal are based on the appellant’s contention that the Veteran was exposed to herbicide agents while serving in Thailand. During his September 2014 informal conference, the Veteran reported that his duties while at Ubon included arming and dearming the aircraft at the perimeter. He stated that he was also required to provide security at perimeter. The Veteran could not provide a specific timeframe of when he was on the perimeter. He stated it was just whenever they were asked to provide security. The representative contended that the Veteran was assigned detail duty that required him to police and clean along the perimeter of RTAFB. The representative also asserted that his duties as a weapons mechanic required him to load and unload weapons aboard F4 fighter jets that were located on the flight line of Ubon RTAFB that was also part of the perimeter. See October 2018 Appellate Brief. The Board finds that the Veteran was not exposed to herbicide agents. The military personnel records show that the Veteran was stationed in Thailand from June 1968 to May 1969 as a member of the Air Force. See July 2015 Military Personnel Record. The Veteran was at the Ubon RTAFB. His performance report for the period April 1968 to March 1969 reflected that he was a weapons load crew member. His duties were listed as performs aircraft preparation checks, weapons systems functional testing, preloads, loads, downloads, postloads, delayed flight maintenance, inspection, handles servicing, cleaning, harmonization, TCTO and TOCs on assigned aircraft weapons suspension and release systems and associated munitions handling equipment. The Board concludes that the most probative evidence of record does not reflect that the Veteran’s duties included working as a security policeman, security patrol dog handler, or member of the security police squadron. Further, the most probative evidence of record does not reflect that his duties brought him near the air base perimeter. A review of his service personnel records did not note any police duties near the perimeters of the RTAFB. See July 2015 Military Personnel Record and September 2014 Military Personnel Record records. A November 2014 formal finding notes that nothing within the Veteran’s performance report as detailed above indicates that the Veteran would at any time be near the perimeter. Further, it was noted that there was nothing to support the Veteran’s contention that he was assigned or augmented to perimeter duties. The Board finds this lack of documentation or indication in the service personnel records more probative than the Veteran and the appellant’s representative’s assertions later in time that he performed such duties. In addition, a memorandum regarding herbicide use in Thailand during the Vietnam Era noted that tactical herbicides were conducted in Thailand from April 2, 1964 to September 8, 1964 and modified ranch hand aircraft flew 17 insecticide missions in Thailand from August 30, 1963 to September 16, 1963 and again from October 14, 1966 to October 17, 1966. See April 2014 Court Documents-General. The Veteran was not in Thailand during these periods of time. As such, the Board finds that the evidence of record does not show that the Veteran was exposed to herbicide agents and therefore the theory of presumptive service connection based on herbicide agent exposure is not applicable. 1. Entitlement to service connection for lung cancer, to include as due to exposure to herbicide agents, is denied. At the outset, the Board notes that the Veteran had a diagnosis of squamous cell carcinoma in the left upper lobe of his lung. See June 2014 CAPRI. As such, the first element of service connection is met. As for the second element, the Board finds that there is no lung-related in-service event, injury, or disease. A review of the service treatment records shows that in the July 1966 induction and November 1970 separation examinations the Veteran was noted to have normal lungs and chest. See July 2013 STR – Medical. In addition, the Veteran only alleged that his lung cancer manifested due to his alleged exposure to herbicide agents and not due to any other events or injuries in service. See January 2014 VA 21-4138 Statement in Support of Claim. Moreover, the Veteran was diagnosed with lung cancer in June 2013, more than 40 years after service. See June 2014 CAPRI. As such, the Board finds that there is no lung-related in-service event or disease. Accordingly, the Board finds that the criteria for service connection for lung cancer are not met. In sum, the criteria for service connection for lung have not been met. The appellant did not assert, and the evidence does not show, that lung cancer was directly related to an in-service event or injury. Accordingly, service connection for lung cancer must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is denied. At the outset, the Board notes that the Veteran had a diagnosis of inferior wall myocardial infarction and arteriosclerotic cardiovascular disease. See April 2014 Medical Treatment Record – Non-Government Facility. As such, the first element of service connection is met. Concerning the second element, the Board finds that there is no heart-related in-service event, injury, or disease. A review of the service treatment records shows that in the July 1966 induction examination the Veteran was noted to have normal heart and vascular system, but endorsed symptoms such as dizziness or fainting spells, and palpitation or pounding heart. See July 2013 STR – Medical. However, in the November 1970 separation examination, the Veteran was noted to have normal heart and vascular system with no symptoms of further palpitation or pounding heart, pain or pressure in the chest, or high or low blood pressure. In addition, the Veteran only alleged that his heart disability manifested due to his alleged exposure to herbicide agents and not due to any other events or injuries in service. See January 2014 VA 21-4138 Statement in Support of Claim. As such, the Board finds that there is no heart-related in-service event or disease. As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s heart disability manifested to a compensable level in the first post-service year. 38 C.F.R. § 3.309(a). A review of post-service treatment records shows that the Veteran was not diagnosed with a heart-related disability until 2002, more than 30 years after service. See April 2014 Medical Treatment Record – Non-Government Facility. In sum, the criteria for service connection for heart disability have not been met. The appellant does not assert, and the evidence does not show, that a heart disability is directly related to an in-service event or injury. Accordingly, service connection for heart disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel