Citation Nr: 21063826 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-14 513 DATE: October 18, 2021 ORDER Service connection for thyroid cancer, trachea, to include as due to herbicide exposure is denied. Service connection for soft tissue sarcoma, to include as due to herbicide exposure is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for soft tissue sarcoma is remanded. FINDINGS OF FACT 1. Exposure to herbicides during the Veteran's service has not been established. 2. Thyroid cancer was not incurred during military service, did not manifest to a compensable degree within one year of separation from service, continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. 3. Soft tissue sarcoma was not incurred during military service, did not manifest to a compensable degree within one year of separation from service, continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for thyroid cancer, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for soft tissue sarcoma, claimed as due to exposure to herbicides have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1964 to October 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017 and in May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board previously considered this appeal in December 2017 and remanded these issues for further development. The case returned to the Board for further appellate review. 1. Entitlement to service connection for thyroid cancer, trachea, to include as due to herbicide exposure. 2. Entitlement to service connection for soft tissue sarcoma, to include as due to herbicide exposure. The Veteran contends that he was exposed to Agent Orange while serving on the USS Kearsarge in the Gulf of Tonkin in 1967 and 1968. He specifically asserts that he worked on the flight deck assembling, arming, and loading aircraft, which were contaminated with Agent Orange. See June 2008 statement, May 2017 Board hearing transcript. At the May 2021 Board hearing, the Veteran testified that the ship was so close that he could see the explosions in the land. The Veteran also contends that he was exposed to Agent Orange by drinking "recycle water" in the pipes of the ship that may have been contaminated. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Also, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). A veteran who, during active military, naval, or air service, served in Vietnam between January 9, 1962, and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii); 38 U.S.C. § 1116 (f). On January 29, 2019, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Specifically, the Federal Circuit increased the potential significance of any in-service presence within the 12-nautical mile territorial sea of the Republic of Vietnam during the Vietnam War in cases featuring alleged exposure to tactical herbicide agents. In consideration of Procopio, further inquiry was conducted in May 2021. A May 2021 Memorandum indicates that exposure to herbicides cannot not be conceded as the evidence of record did not show that the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Included with the Memorandum was a Deck Log Report and a map indicating the location of the USS Kearsarge from August 1967 to April 1968. Additional inquiry through the Joint Services Research Records Center (JSRRC) in May 2021 indicated that "a professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, has completed comprehensive research on the Veteran's claimed exposure to herbicides while serving aboard the USS KEARSARGE (CVS-33) from August 17, 1967 to April 6, 1968. The following sources were reviewed in an attempt to substantiate the Veteran's claimed exposure: The 1967 and 1968 Command Histories submitted by the USS KEARSARGE. In conclusion, no evidence was located to support documentation of the claimed exposure." As such, there is no evidence of exposure to herbicides. Although presumptive service connection based on herbicide agent exposure is not available for the Veteran's claim for service connection for thyroid cancer and soft tissue sarcoma, service connection may still be established with proof of direct causation. cf. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence clearly reflects diagnoses of both thyroid cancer and liposarcoma. Service treatment records fail to reflect any complaints, treatment or diagnoses of any thyroid condition or soft tissue sarcoma. In fact, there was no disease or defect related to the thyroid or liposarcoma noted on the separation examination. The VA provided an examination of the shoulder and liposarcoma in August 2018. After reviewing the Veteran's record, the examiner opined it is less likely as not that the Veteran's claimed disability was incurred in or caused by or during service because the condition was not detected while on active service dates or while on deployment. The examiner added that "the condition diagnosed was a soft tissue sarcoma, this is a presumptive illness associated with herbicide exposure to Agent Orange." As noted above, however, unfortunately, the record does not establish proof of exposure to herbicides. The examiner further concluded the condition did not onset in service. The Board finds the VA examination to be probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran himself has opined that his diagnosed thyroid cancer and sarcoma is related to service, the Board finds that although he is competent to report observable symptoms, he is not shown to possess the type of medical expertise that would be necessary to opine regarding the etiology of cancer. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The question of causation in this case involves a complex medical issue, requiring knowledge of the types and presentation of cancers, and the Veteran has not been shown to have the medical expertise required to address such an issue. The Board has weighed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran's thyroid cancer and soft tissue sarcoma are related to service. As such, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to compensation under 38 U.S.C. § 1151 for soft tissue sarcoma. The Veteran asserts he is entitled to compensation under 38 U.S.C. § 1151 for soft tissue sarcoma. The Veteran contends that VA was negligent in mistreating, misdiagnosing, and failing to provide proper follow-up for soft tissue sarcoma. He claims that he first reported symptoms related to his 1997 diagnosis of soft tissue sarcoma, 10 years prior to the diagnosis. A VA treatment record from March 1997 indicates that the Veteran had a left shoulder liposarcoma on his shoulder excised. The treatment record indicates that the Veteran had a "10 year history of deltoid lipoma mass on left shoulder." In December 2017, the Board remanded the claim for a VA medical opinion. The VA provided an examination in August 2018. After reviewing the Veteran's record, the examiner opined it is less likely as not that the Veteran's claimed disability was incurred in or caused by or during service because the condition was not detected while on active service dates or while on deployment. The examiner added that "the condition diagnosed was a soft tissue sarcoma, this is a presumptive illness associated with herbicide exposure to Agent Orange." Further, the examiner opined that VA did not fail to diagnose or treat a preexisting condition that ultimately resulted in the Veteran's soft tissue sarcoma (liposarcoma). The examiner indicated that the Veteran's records showed that soft tissue mass was noted to be a lipoma, a benign condition. A CT of his left shoulder condition in February 1997 and a biopsy in March 97 directed the necessity for surgical removal. Upon that removal, condition was curative and there was no recurrence or evidence that any extended time interval produced a negative outcome or caused any additional morbidity. The examiner's rationale is "malignant transformation from lipoma to liposarcoma took time. Such malignant transformation is rare, and "preventative" surgical removal not indicated." The August 2018 examiner did not adequately address the Veteran's contention that he was not followed up and was not told about the significance of his cancer and the excision, and the possible recurrent nature of it. See May 2021 Board hearing transcript. Thus, remand is required to secure an adequate VA opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran with an appropriate examination to determine the etiology of his soft tissue sarcoma. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Based on a review of the record, the examiner should address the following: (a.) Did VA fail to diagnose or treat a preexisting condition that ultimately resulted in the Veteran's soft tissue sarcoma (liposarcoma)? (b.) If the answer to (a) is yes, should a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably have diagnosed the condition and rendered treatment? (c.) If the answer to (b) is yes, did the Veteran suffer additional disability which probably would have been avoided if proper diagnosis and treatment had been rendered? The examiner should specifically consider and discuss the March 1997 VA treatment record noting a 10-year history of deltoid lipoma mass on left shoulder. The examiner must address the Veteran's May 2021 and May 2017 Board hearing testimonies. A complete rationale must be provided for all opinions. If the examiner determines that an examination is necessary in order to render the requested medical opinion, the RO/AMC should schedule the Veteran for such an examination. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, Associate Counsel 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.