Citation Nr: 21069685 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-17 134 DATE: November 19, 2021 ORDER Entitlement to service connection for ischemic heart disease is granted. REMANDED Entitlement to service connection for tonsillar cancer is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicides while serving at the Udorn Royal Thai Air Force Base in Thailand. 2. The Veteran's ischemic heart disease is presumed to have been incurred as a result of herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for ischemic heart disease The Veteran seeks service connection for ischemic heart disease, which he asserted was caused by in-service exposure to herbicide agents. Specifically, the Veteran asserted that he was exposed to herbicide agents while serving in Thailand at Udorn RTAFB. During his July 2021 Board hearing, the Veteran testified that his duties required him to be in close proximity to the perimeter of the base. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established on a presumptive basis for ischemic heart disease (including coronary artery disease) if the Veteran served during specified time periods, was exposed to an herbicide agent, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, 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), 3.309(e). In addition to exposure within the Republic of Vietnam, exposure to herbicides has been noted to have occurred in various places, including Thailand. VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs), including Udorn, near the air base perimeter anytime between February 28, 1961 and May 7, 1975 may have been exposed to herbicides. However, a veteran must have served 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, performance evaluation, or other credible evidence. Upon review of the record, the Board acknowledges that the Veteran has been diagnosed with ischemic heart disease. Thus, the first criterion for establishing service connection has been met. The Veteran's service personnel records confirm that he service in Thailand at the Udorn RTAFB from 1972 to 1973. During this time, the Veteran's military occupational specialty was aerospace photographic systems repairman and his contentions as to his duties are consistent with his occupational specialty in Thailand. Moreover, the Board finds his contentions concerning service along the perimeter of the RTAFB to be sufficiently credible and consistent with the particular circumstances of his service. Therefore, after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was exposed to herbicide agents during service. Accordingly, his ischemic heart disease is presumed to be related to herbicide agent exposure and service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for tonsillar cancer is remanded. The Veteran asserts that his tonsillar cancer is a respiratory cancer associated with exposure to herbicide agents. In an August 2021 statement, the Veteran's private physician indicated that the Veteran's tonsils are part of his upper respiratory tract. For purposes of presumptive service connection, VA has specifically defined "respiratory cancers" to only include cancers of the lung, bronchus, larynx, and trachea. See 38 C.F.R. § 3.309(e). Thus, while medically the tonsils may be considered part of the upper respiratory system, for VA purposes, it is not considered a respiratory cancer and is not an enumerated disease for which presumptive service connection is available. Nevertheless, the fact that the Veteran cannot establish entitlement to service connection for tonsillar cancer on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, the Board finds that remand is necessary to obtain a VA medical opinion to determine whether the Veteran's tonsillar cancer is related to service, to include his conceded exposure to herbicides. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his tonsillar cancer. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain a VA medical opinion with respect to the Veteran's service connection claim for tonsillar cancer. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that this Veteran's tonsillar cancer is related to service, including his conceded herbicide exposure. The examiner should explain why or why not. While the examiner is free to cite to medical treatises in rendering the opinion, the examiner's rationale cannot rely solely on the fact that VA has not included tonsil cancer in the list of presumptive conditions. In other words, the Board needs an opinion as to the likelihood that this Veteran's tonsil cancer, without regard to the conditions VA recognizes as being due to Agent Orange, is nevertheless at least as likely as not related to his exposure to herbicides during service. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.