Citation Nr: 18130347 Decision Date: 08/29/18 Archive Date: 08/29/18 DOCKET NO. 16-00 983 DATE: August 29, 2018 ORDER Entitlement to service connection for lung cancer, as a result of exposure to a herbicide agent, to include Agent Orange, is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran served at Ubon Air Force Base for at least six months in 1971; he did not have contact with aircraft used in the aerial dissemination of a herbicide agent, to include Agent Orange; nothing in the record establishes contamination by a herbicide agent by contact with aircraft which may have had tours of duty in Vietnam; nothing in the record establishes that the tasks and duties of his military occupational specialty included being in proximity to the base perimeter. 2. The objective medical evidence shows that non-small cell carcinoma associated with the Veteran’s lung cancer did not manifest to a compensable degree within one year of separation from active duty service. 3. The objective medical evidence shows that the Veteran’s non-small cell carcinoma of the upper lobe of the right lung is not caused by an event, injury or illness during active duty service or is etiologically related to it.   CONCLUSION OF LAW The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Air Force from June 1968 to March 1972. 1. Entitlement to service connection for lung cancer, as a result of exposure to an herbicide agent, to include Agent Orange. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases, including cancer, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Exposure to an Herbicide Agent, to Include Agent Orange A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to a herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. §3.309 (e). The Veteran’s Certificate of Release or Discharge from Active Duty states that he served in “Indochina” and did not serve in Vietnam. His Military Personnel Record contains a chronological listing of service and performance reports, indicating that the Veteran served at Ubon Airfield in Thailand from at least January 1971 through at least June 1971. VA procedures for verifying exposure to herbicide agents in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide-agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. See M21-1, Part IV.ii.1.H.5.a. A section of this manual addresses herbicide-agent exposure in Thailand during the Vietnam Era (“herbicide” as used in the manual is understood to mean “herbicide agent” as used in the regulation). The manual directs rating specialists to concede herbicide agent exposure to those who served in the United States Air Force at a number of Royal Thai Air Force Bases. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a 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 (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10 (q). The Veteran’s performance reports from the period of posting at Ubon Airfield show that his duties were consistent with the description of the duties of an aircraft mechanic. For example, he was complimented by senior non-commissioned officers for towing and positioning aircraft without accident; working with hydraulic jacks, oxygen carts and maintenance stands; maintaining tractors; handling liquid oxygen; and assisting in repairs to leaking wheel brakes. Consistent with the Veteran’s reports in his August 2015 Statement in Support of Claim and the statement accompanying his January 2016 VA Appeals Form 9, the only aircraft mentioned in the above documents which the Veteran serviced were C-130s. The Veteran’s asserts that the C-130s which he serviced were used to disseminate Agent Orange and that this was documented in, presumably, official films. However, for the preparation of the March 2013 VA memorandum on “Herbicide use in Thailand during the Vietnam Era,” a series of Department of Defense monographs were reviewed and show that the aerial dissemination of tactical herbicides in the United States Army Chemical Corps’ initiatives for Operation RANCH HAND were effected only by UC-123 aircraft and by helicopters. Based on the VA memorandum’s review of the relevant studies and the Veteran’s own reports, he had no contact with aircraft which in turn had contact with herbicide agents. Moreover, in regard to herbicide-agent use in Thailand, both the VA memorandum and the Regional Office (RO) “Formal finding of inability to show a presumptive basis for Agent Orange exposure in Thailand,” which is based in part on a review of the VA memorandum, state there are no records of tactical herbicide spraying during Operation RANCH HAND or by United States Army Chemical Corps aircraft in Thailand after 1964 and Operation RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14 –17 October 1966. The 1966 missions involved the spraying of malathion insecticide for the “control of malaria carrying mosquitoes.” Regardless of the nature of the missions, the Veteran has reported being stationed in Thailand between January 1971 and January 1972 and, as stated above, the Veteran’s chronological listing of service from the period shows he was there from January 1971 to at least June 1971. Put plainly, based on these dates, any aerial spraying in Thailand is not relevant to the Veteran’s claim. The Veteran’s August 2015 Statement in Support of Claim suggests that, because the C-130s which he serviced had tours of duty in Vietnam, this also establishes contamination of the Veteran by a second “secondary” exposure of a sort, as he would have gotten “herbicide powder/dust all over hands [and] clothes [and] breathed in particles,” having “worked inside/outside of these aircraft.” However, the VA memorandum on “Herbicide use in Thailand during the Vietnam Era” states: [P]lease be advised that there is no presumption of “secondary exposure” based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam…. Also, there are no studies that we are aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. Nonetheless, the Veteran further asserts in the statement accompanying his February 2014 Notice of Disagreement that VA has established special procedures for claims based on herbicide agent use in Thailand, whereby exposure will be conceded if a veteran’s duties were near the base perimeter or proximity to the perimeter is indicated by a veteran’s military occupational specialty. To the Notice of Disagreement and its statement, the Veteran attached a map and photographs. The Veteran suggests in the accompanying statement that his barracks were near the perimeter fence. Although the map purports to be of Ubon Air Force Base, the only indication of this is the Veteran’s hand-written designation that this is so. In the accompanying statement, the Veteran states “you can see on the base map the location of the barracks.” Actually, this is not readily apparent to the Board, as there is nothing, either in print or in hand-writing, to indicate what buildings are barracks. There is a printed key on the map, which lists the names or designations of structures with corresponding numbers. The numbers appear within the structures drawn of the map. However, the key, although it lists, for example, the Airmen’s club, the chapel, the post office, and the laundry, does not include “barracks” with corresponding numbers. Furthermore, even if it were assumed that the structures depicted near the perimeter fence are in fact barracks, the map does not depict with any precision the proximity of any building to the perimeter fence; there is no sense of measurable distance. The photographs provide nothing more for the same reasons of lack of specificity, designation and context. Finally, there is no evidence of which the Board is aware that a Barracks near the perimeter would provide evidence of herbicide exposure. Based on these observations, the map and photographs have little probative value. The Board cannot conclude from reviewing them anything asserted by the Veteran, including whether the map in fact represents Ubon Air Force Base. Even assuming it does represent the air base, nothing establishes herbicide exposure. As stated above, the Veteran has mentioned in his Notice of Disagreement statement that a veteran’s military occupational specialty may establish proximity to the perimeter and therefore exposure based on his or her assigned duties. However, once again, as stated earlier, the Veteran’s periodic performance reports while stationed at Ubon Air Force Base give a detailed glimpse into the numerous and varied tasks associated with the Veteran’s duties as an aircraft mechanic. Yet, whether described abstractly in a United States Air Force position description or as indicated by the examples given by supervisory non-commissioned officers in the Veteran’s performance reports, absolutely nothing is in evidence to indicate that the Veteran’s work took him frequently or intermittently up to the perimeter fence of the base. Without evidence to the contrary, the Board must conclude that the Veteran’s military occupational specialty provided no opportunity to be in proximity to the base perimeter while performing the duties of his position. Based on the evidence of record as discussed above, the Board finds the Veteran served at Ubon Air Force Base for at least six months in 1971; he did not have contact with aircraft used in the aerial dissemination of a herbicide agent, to include Agent Orange; nothing in the record establishes contamination by a herbicide agent by contact with aircraft which may have had tours of duty in Vietnam; nothing in the record establishes that the Veteran was barracked near the perimeter fence of the base; and the tasks and duties of his military occupational specialty did not include being in proximity to the base perimeter.   Chronic Disease As stated at the beginning of this decision, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree, usually within one year. “Tumors, malignant” are included among chronic diseases. The non-small cell carcinoma associated with the Veteran’s lung cancer is considered included under this category. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). However, the record gives no indication whatsoever of the manifestation of symptoms of lung cancer in complaints, treatment or diagnoses within a year of separation from active duty service. The Veteran’s reports are inconsistent with medical records, but it appears cancer was detected no earlier than 2004 or early 2005, followed in March 2005 by a lobectomy which removed a portion of his upper right lung. Consequently, the presumption of service connection for lung cancer as a chronic disease is not available to the Veteran. Additionally, because lung cancer was never identified in service, it would be impossible to establish continuity of symptomatology following upon service and, as just stated, the subsequent record does not reflect this. Based on the objective medical evidence, non-small cell carcinoma associated with the Veteran’s lung cancer did not manifest to a compensable degree within one year of separation from active duty service. Consequently, the presumption of service connection as a chronic disease is unavailable to the Veteran. Direct Service Connection When the presumption of service connection is not applicable, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the Veteran’s service treatment records (STRs) show no complaints, treatment or diagnoses in service for a lung disorder or any form of cancer. The Veteran’s March 1968 pre-qualification examination shows the category of “lungs and chest” checked off as normal and the Veteran’s negative response to ever having a “tumor, growth, cyst, cancer.” A May 1969 examination shows no entry for “lungs and chest,” but does indicate the Veteran’s negative response for “tumor, growth, cyst, cancer.” A June 1969 chest x-ray found no significant abnormalities. A February 1972 examination shows the category of “lungs and chest” checked off as normal and the answer no to tumor/cancer. The September 1972 separation examination shows the category of “lungs and chest” checked off as normal. After initially presenting with a cough, congestion and low-grade fever, March 2005 private treatment records show the Veteran’s diagnosis for right upper lobe non-small cell carcinoma, pneumonia secondary to obstruction from the lung mass and tobacco use. He underwent a partial right lung resection for carcinoma. August 2012 CT scan results indicated normal findings. Although a pulmonary function test in November 2012 revealed mild obstructive lung function, routine check-ups from 2012 through 2016 showed the Veteran otherwise to be effectively cancer-free. In fact, a February 2013 note mentions that the VA oncology department where the Veteran sought his treatment was no longer following the Veteran’s cancer. Although chronic obstructive lung disease appears on the Veteran’s problems list in April 2016, his non-small cell cancer is listed having no chemotherapy and no radiation treatments. Based on the foregoing record of treatment, the Board finds that the Veteran’s non-small cell carcinoma of the upper lobe of the right lung is not caused by and event, injury or illness during active duty service or is etiologically related to it.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel