Citation Nr: 21068233 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 20-28 647 DATE: November 9, 2021 ORDER Entitlement to service connection for lung cancer, claimed as due to in-service exposure to an herbicide agent, is granted. FINDING OF FACT 1. While in Thailand at Korat Royal Thai Air Force Base (RTAFB), the Veteran's duties of his Military Occupational Specialty (MOS) placed him in close proximity to the base's perimeter. 2. Resolving all doubt in the Veteran's favor, the Board concludes that he was exposed to an herbicide agent while temporarily assigned to Korat RTAFB on multiple occasions while stationed in Thailand. 3. The Veteran's lung cancer is presumed to be related to his in-service exposure to an herbicide agent. CONCLUSION OF LAW The criteria for service connection for lung cancer due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) from a September 2017 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA), Regional Office (RO). The Veteran was scheduled for an in-person Travel Board hearing with a Veterans Law Judge on August 3, 2021. However, the Board notes the Veteran was a no show and no good cause was shown. Entitlement to service connection for lung cancer, claimed as due to in-service exposure to an herbicide agent while stationed at Korat RTAFB. In this case, the Veteran seeks service connection for lung cancer claimed as due to in-service exposure to an herbicide agent while stationed at Korat RTAFB in Thailand. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted for certain specified diseases on a presumptive basis if a veteran was exposed to Agent Orange during active service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(b), 3.309(e). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Department of Defense has also confirmed to VA that herbicides were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era. The list of diseases associated with exposure to these herbicide agents includes lung cancer. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran's VA treatment records confirm a diagnosis of lung cancer, since September 2007. The Veteran reported a return of his cancer in November 2016. Medical records from June 2009 note the Veteran underwent chemotherapy in October and November 2007. The Board finds that the first element for establishing service connection has been met. Lung cancer is one of the diseases presumed to be due to in-service exposure to herbicides; the Veteran need only establish that he either directly was exposed to herbicides or is presumed to have been exposed to herbicides to be entitled to service connection. 38 C.F.R. § 3.307(a)(6)(iii), 38 C.F.R. § 3.309(e). In that regard, the Board notes that the Veteran's October 2017 statement regarding his deployment and MOS duties to be credible and highly probative. The Veteran noted from October 1965 to December 1966 he was stationed in Thailand. When he arrived, he landed at Korat RTAFB and he was sent to Bangkok. However, he went to Korat multiple times for temporary duty assignments. He further wrote that he was part of the 105th Signal Brigade Detachment assigned to the Strategic Air Command and worked in cryptography. He reported that, while on reconnaissance patrols, they would encounter "Viet Cong that had come into Thailand." He noted that he would go out, complete their patrol, and come back the same day. In doing so, they would pass through the perimeter of the base. Further, he wrote that he would stay in "open air hooches" (no doors, no windows, only screened in enclosure) near the perimeter. Importantly, while the Board appreciates that the RO was unable to confirm the Veteran's reported temporary duty to assignments to Korat RTAFB while the Veteran was in Thailand over the period of October 1965 to December 1966, there is nothing in the record that directly contradicts the likelihood of such assignments and the nature of those duty assignments, and the United States Court of Appeals for Veterans Claims (Court) has frequently held that the absence of confirming records cannot by themselves serve to impeach the Veteran's otherwise credible assertions concerning the nature of his service. Therefore, given the fact that there is no evidence that directly contradicts the statements of the Veteran's statements regarding his temporary duty at Korat RTAFB, the Board will give the Veteran the benefit of the doubt and find that evidence of record supports a finding that the Veteran was temporarily assigned to Korat RTAFB on multiple occasions while in Thailand and that his duties placed him in close proximity to the perimeter. Therefore, herbicide exposure is conceded and the second element for establishing service connection has been met. As outlined above, the Veteran is presumed exposed to herbicide agents, and therefore, the Veteran is entitled to presumptive service connection for lung cancer. As such, service connection for this disability is warranted. 38 C.F.R. §§ 3.307, 3.309. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.