Citation Nr: 18157601 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-12 707 DATE: December 13, 2018 ORDER Entitlement to service connection for nasal polyps is dismissed. Entitlement to service connection for lungs condition (claimed as mass on lung) is dismissed. Entitlement to service connection for syncope is dismissed. Entitlement to service connection for bladder cancer is granted. REMANDED Entitlement to service connection for lower back condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for rash on thighs and arms is remanded. FINDINGS OF FACT 1. In August 2018, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw his appeal with respect to the issues of entitlement to service connection for nasal polyps, lungs condition, and syncope. 2. The Veteran’s bladder cancer is related to herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met with respect to the issues of entitlement to service connection for nasal polyps, lungs condition, and syncope. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for bladder cancer have been met. 38 U.S.C. §§ 1101, 1110, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from August 1958 to August 1962, and the Air Force from August 1962 to July 1971. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Withdrawal of Appeal 1. Nasal Polyps, Lungs, Syncope The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, at his August 2018 Board videoconference hearing, the Veteran with the assistance of his representative, indicated that he wished to withdraw his appeals with respect to the issues of entitlement to service connection for nasal polyps, lungs condition, and syncope. See also August 2018 VA 21-4138 Statement in Support of Claim. During the hearing, the undersigned VLJ explained to the Veteran the consequences of a withdrawal of his appeal with respect to these matters. Specifically, that if he withdrew the appeal and changed his mind, he could still file a new claim, but would have to start the process over at the beginning. Hearing Transcript, at 3. Given these statements, the Board finds that the Veteran’s statement is explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Cf. Acree v. O’Rourke, 891 F.3d 1009, 1013, n. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a Board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). Under these circumstances, the matters are no longer within the Board’s jurisdiction and are dismissed. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a presumptive basis for if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Although veterans who served in the Republic of Vietnam are presumed to have been exposed to herbicide agents, the Veteran served in Thailand. In addition to exposure within the Republic of Vietnam, exposure to Agent Orange and other herbicide agents has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand. VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. To warrant a finding of herbicide agent exposure at one of the above listed air bases, a veteran must have served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, “or other credible evidence.” See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.a-b (Apr. 7, 2018). If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct/facts-found basis. Id. The Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but these provisions of the Adjudication Manual reflect an acknowledgment that herbicide agents were sprayed near the perimeter of bases in Thailand. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA must consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary must give the benefit of the doubt to the claimant. 2. Bladder Cancer The Veteran contends that his bladder cancer is due to his exposure to Agent Orange in Thailand. Although bladder cancer is not a disease presumptively associated with herbicide agent exposure, entitlement to service connection can nevertheless be demonstrated on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In this case, the evidence of record, specifically a February 2013 private treatment record, shows that the Veteran was diagnosed as having bladder cancer. Thus, the first element of service connection has been met. The threshold issue in this case is whether the Veteran had in-service herbicide agent exposure. The Veteran’s service personnel records show that he served at U-Tapao Airfield in Thailand as a bulk fuels storage operator, during the period of May 3, 1968 to May 1969. In a July 2013 statement, the Veteran reported that he was a part of the Vietnam air offensive campaign phase III 1BSS. He stated that he was involved in refueling aircrafts modified with tanks to spray and destroy foliage or plant life. He asserted that the chemical sprayed was Agent Orange. The Veteran noted that the aircrafts used were C-133, C-130 and C-124. He further noted that by refueling these planes he was exposed to the chemical Agent Orange. See also August 2014 Notice of Disagreement. At the August 2018 Board hearing, the Veteran testified that while stationed on U-Tapao base, he was exposed to Agent Orange when he worked as a fuel specialist on the Thailand perimeter. He stated that he wore no protective clothing when refueling generators and aircraft that sprayed the chemicals. Although there is no evidence that the Veteran ever operated as a security policeman, security patrol dog handler, or member of a security police squadron, the Board finds the statements of the Veteran to be competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Exposure to herbicide agents is therefore conceded on a direct/facts-found basis. With respect to the third and final element, a nexus, in a May 2014 letter, private doctor W.R. reported that the Veteran had been under his care for his history of bladder cancer originally diagnosed in February 2013. He stated that the Veteran was found to have a papillary urothelial carcinoma, low grade, located at the bladder neck at that time. The Veteran underwent transurethral resection of the bladder tumor. Doctor W.R. opined that he certainly believed that the Veteran’s low-grade malignancy may be directly related to his prior exposure during his time of being enlisted. He noted the Veteran’s exposure to various grades of jet fuel and other chemical exposures including Agent Orange exposure during military service. Doctor W.R. further noted the significant relationship between bladder cancer and chemical exposure, including paint and gasoline, as well as the relation to Agent Orange. As Dr. W.R. explained the reasons for his conclusions based on an accurate characterization of the evidence of record and general medical principles, his opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, although both “certainly” and “may” terminology was used, to the extent that this did not meet the “at least as likely as not” standard reflected in 38 U.S.C. § 5107(b), it is nevertheless evidence in support of the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as “evidence” of whether the disorder was incurred in service). There is no contrary medical opinion in the evidence of record and no other probative evidence of record which attributes the Veteran’s current bladder cancer to any other cause than in-service exposure to fuel and chemicals, including Agent Orange. In light of the current diagnosis of bladder cancer, competent and credible evidence of in-service exposure to Agent Orange, the May 2014 private opinion, and resolving reasonable doubt in the Veteran’s favor, service connection for bladder cancer is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Lower Back, Left Knee, Right Knee The Veteran contends that his lower back and bilateral knee disabilities had their onset in service. At the Veteran’s July 1971 separation examination, he reported having back trouble. He indicated that he experienced back trouble with certain movement, and no medical treatment was required since February 1969. In an August 2014 statement, the Veteran reported that his problem with his back and knees began when he was in the Marine Corp. He stated that he worked in the fuel and oil drum storage area, where he received, stored, and loaded them on trucks. He reported lifting portable fuel tanks or bladders, that together weighed about 1200 pounds, and pulling a 75-foot hose during refueling. The Veteran asserted that his lower back and knees were damaged during military service, and that even now, he experiences pain. At the August 2018 Board hearing, the Veteran testified that while serving in Okinawa, his back and knees started to hurt from carrying 55-gallon drums of fuel once or twice a week. He stated that he had physical therapy for his back in service. The Veteran noted that he did not receive treatment for his knees in service. He stated that his back and knees continued to hurt throughout military service, and continues to the present day. The Veteran’s post-service clinical records indicate degenerative arthropathy involving the lumbar spine at the L4-L5 levels. The evidence of record shows that the Veteran has been diagnosed as having right knee osteoarthritis, and degenerative joint disease of both knees. The evidence also reflects lower back and bilateral knee symptoms in and since service. The Veteran has not been afforded a VA examination in conjunction with lower back and bilateral knee claims. As the evidence indicates that the Veteran has current disabilities that may be associated with service, a VA examination should be conducted and opinion obtained as to the etiology of the Veteran’s lower back and bilateral knee disabilities. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Rash The Veteran contends that his rash on thighs and arms had its onset in service. Service treatment records indicate that the Veteran was treated for cellulitis with lymphadenitis of the right forearm, and scaly rash on both arms in service. Symptoms of boils and abcess were noted. Service treatment records also indicates that the Veteran received treatment for rash on outer thighs of both legs. At the Veteran’s July 1971 separation examination, he reported having skin diseases and boils. Post-service clinical records show complaints and treatment for irregularly shaped scaly hypo-pigmented lesions on arms. A diagnosis of tinea versicolor was noted. At the August 2018 Board hearing, the Veteran testified that his rash on thighs and hands started while serving in Thailand. He stated that he received treatment in service, however, the rash continued after service, and continues to this day. The Veteran reported that his symptoms included boils, itching, and scales on arm and thighs. Witness M.C. testified that as a child, he remembered seeing the Veteran with rashes and in pain. The Veteran has not been afforded a VA examination in conjunction with rash on thighs and arms claim. As the evidence indicates that the Veteran has a current disability that may be associated with service, a VA examination should be conducted and opinion obtained as to the etiology of the Veteran’s lower rash on thighs and arms disability. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his lower back disability. The claims file, including a copy of this remand, should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that a lower back disability had its onset in service or is otherwise related to military service, to include the injuries described in the lay statements. The examiner must provide a comprehensive rationale for all opinions provided. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral knee disabilities. The claims file, including a copy of this remand, should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a current disability of either knee had it onset during service or is otherwise related to military service, to include the injuries described in the lay statements. The examiner must provide a comprehensive rationale for all opinions provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his rash on thighs and arms disability. The claims file, including a copy of this remand, should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that any skin disability had its onset in service or is otherwise related to military service, to include consideration of the statements indicating that the rash on the Veteran’s thighs and hands started while he was serving in Thailand. (Continued on the next page)   The examiner must provide a comprehensive rationale for all opinions provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel