Citation Nr: 20037524 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-37 228 DATE: June 2, 2020 ORDER Service connection for breast cancer is granted. FINDING OF FACT Probative medical evidence has linked the Veteran’s breast cancer to exposure to herbicides during service. CONCLUSION OF LAW The criteria for service connection for breast cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to April 1972, including service in Thailand at Korat Royal Air Force Base. VA has conceded that the Veteran was exposed to herbicides during his active service.   This case comes from a September 2012 rating decision. This case was previously before the Board in May 2018. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been compliance with the prior May 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the   disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). The Republic of Vietnam now also includes the 12 nautical mile territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection. See Procopio, 913 F.3d 1371. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure do not appear to include breast cancer. 38 C.F.R. § 3.309(e). The Veteran contends that he developed breast cancer due to his exposure to herbicides while serving in Thailand. The Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Private and VA medical records (including the August 2019 VA examination) have noted a diagnosis of breast cancer. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service personnel records indicate service at the Korat Royal Air Base in Thailand during the Vietnam War. Exposure to herbicides at Korat may be presumed if your duties involved service around the base perimeter. The Veteran was a Vehicle Operator whose duties included transporting passengers and cargo between bases and cities in Thailand. As noted by the RO, it is reasonable to assume, that because the Veteran had to leave and return to base, he was at the base perimeter on numerous occasions. As such, exposure to herbicides is conceded. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the breast cancer is related to the Veteran’s Agent Orange exposure on active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An August 2019 VA examination was conducted. The VA examiner provided a lengthy review of medical literature and the claims file and opined that the Veteran’s breast cancer was likely related to his exposure to herbicides during service. The opinion noted that a link between Agent Orange and his cancer was supported by the Veteran’s medical history, familial history, and pertinent medical literature. The Board thus assigns significant probative value to this opinion as it based upon review of the relevant evidence and was supported by an explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a   medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Service connection is thus warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.