Citation Nr: 21070599 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-00 384A DATE: November 24, 2021 ORDER Service connection for prostate cancer due to herbicide exposure is denied. Service connection for a thyroid disability due to herbicide exposure is denied. REMANDED Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active duty service. 2. The preponderance of the evidence shows that the Veteran's prostate cancer did not manifest in service or for many years thereafter and is not related to service. 3. The preponderance of the evidence shows that the Veteran's thyroid disability did not manifest in service or for many years thereafter and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113(b), 5107(b); 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309. 2. The criteria for service connection for thyroid disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113(b), 5107(b); 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from November 1961 to May 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2013 and January 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The April 2013 rating decision denied the Veteran's claims for entitlement to service connection for prostate cancer, a neck tumor (to include a thyroid disability) and an acquired psychiatric disorder. The January 2017 rating decision denied the Veteran's claim for entitlement to service connection for carpal tunnel. On his January 2018 and April 2019 VA Form 9s, the Veteran requested hearings before the Board. However, in September and October 2019, the Veteran withdrew his hearing requests. Therefore, the Board finds that there is no outstanding hearing request. In a November 2019 decision, the Board granted service connection for an acquired psychiatric disability and remanded the remaining claims for further development. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 may also be established on a presumptive basis for certain enumerated diseases listed at 38 C.F.R. § 3.309(e) if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. Prostate cancer is one of the listed diseases presumed to be due to Agent Orange exposure, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Previously, it was established law that a Veteran must have set foot on the land mass of Vietnam or have been present in the inland waterways of that country during the statutory period (so-called "brown water" naval activity) in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). However, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit (Federal Circuit) interpreted "served in the Republic of Vietnam" in 38 U.S.C. § 1116(a)(1) to unambiguously include service in the territorial sea of that country. Procopio at 1376 (Fed. Cir. 2019). Prior to Procopio, veterans known as Blue Water Navy Veterans did not receive the presumption of herbicide agent exposure afforded by the Agent Orange Act of 1991. In Procopio, the court expressly overruled Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), which had upheld VA's "foot-on-land" requirement over a decade earlier. Id. at 1373, 1380. The Blue Water Navy Act of 2019 codified the Procopio holding and was made effective from January 1, 2020. See 38 U.S.C. § 1116A. While in an October 2010 statement the Veteran reported that he served during the Vietnam Era and served in Vietnam, he later clarified that he believed his agent orange exposure was in Okinawa, Japan. The Veteran does not contend, and the evidence of record does not reflect, that the Veteran is a Blue Water Navy veteran. The Veteran has never asserted that he served in the offshore waters of Vietnam. While the Veteran was in active duty during the applicable time period, the evidence does not reflect that he served in Vietnam either through "foot-on-land" or the territorial sea of that country. Applicable regulations previously stated that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent 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)(iv). The Blue Water Navy Vietnam Veterans Act of 2019 also codified VA's regulation related to veterans who served in Korea in a new section of the U.S. Code 38 U.S.C. § 1116B, though with modifications. Notably, it contains no reference to units designated by DoD; it simply refers to veterans who "served in or near" the DMZ. Thus, the Blue Water Navy Vietnam Veterans Act of 2019 removed the limitation that the presumption applied only to veterans who served in the DoD-specified units. Compare 38 C.F.R. § 3.307(a)(6)(iv), with Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969 (2019). Specifically, under 38 U.S.C. § 1116B, a veteran who developed a disease recognized as presumptively related to herbicide exposure, and who served during active military, naval, or air service, in or near the DMZ, during the period beginning on September 1, 1967, and ending on August 31, 1971, shall be considered to have been incurred or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. See 38 U.S.C. § 1116B. Once in-service exposure to Agent Orange (either presumptive or actual) has been established, a veteran may obtain service connection on a presumptive basis for any of the diseases found to be associated with such exposure. In addition, a presumption of herbicide exposure is also extended to an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). Military personnel records do not show any service in or near the Korean DMZ area and the Veteran does not contend that he has had any service in or near the Korean DMZ area. The Veteran has never served in the Air Force or Air Force Reserve. Finally, VA has also established a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam era. Special consideration of herbicide agent exposure on a facts-found or direct basis is extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide agent exposure. Specifically, if a veteran served in the United States Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, then herbicide exposure may be conceded on a facts found basis. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). Military personnel records do not reflect that the Veteran served in Thailand and he does not make any contentions that he served in or near Thailand, to include through his military occupational specialty duties. In essence, the Veteran served in Okinawa and there is no indication that tactical herbicides were used there. There is no presumption of herbicide agent exposure for veterans who served in Okinawa. While the Veteran sincerely believes that he was exposed to herbicides in Okinawa, his assertions are not corroborated by any objective findings. Additionally, the evidence fails to show that the Veteran served in Vietnam by "foot-on-land" or in the territorial sea of that country, he has never served in the Korean DMZ area or through the Air Force and Air Force Reserve, and he has never served in Thailand or at the military perimeters or any military bases there. As such, he is not entitled to the presumption of Agent Orange exposure. Although the Veteran may not be presumed to have been exposed to herbicides during service, he is nevertheless not precluded from establishing service connection based on a finding of direct exposure. In addition, when service connection cannot be granted on a presumptive basis, a veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). No examination is necessary in order to adjudicate the Veteran's claims for service connection. As indicated in the discussion below, the evidence does not show persistent or recurrent symptoms thereof of prostate cancer and thyroid disabilities since service, and there is no evidence indicating that they may be associated with service. To the extent that the Veteran has asserted that they are related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Service connection for prostate cancer and a thyroid disability due to herbicide exposure The Veteran contends that his diagnosed prostate cancer and his eventual total thyroidectomy are due to agent orange exposure while stationed in Okinawa, Japan. Military personnel records confirm that the Veteran embarked onboard the USNS General Edwin D. Patrick (TAP-124) at San Diego, California on July 1, 1963 to Naha Port, Okinawa and arrived there on July 13, 1963. The Veteran's military occupational specialty (MOS) was a rifleman. Correspondence from October 2010 confirmed that the Veteran did not serve in the Republic of Vietnam. In February 2013, VA issued a formal finding of a lack of information required to corroborate herbicide exposure. They specifically reported that the Veteran's ship was reviewed using the Dictionary of American Naval Fighting Vessels and was negative for any signs of "Brown Water." In his April 2014 NOD, the Veteran reported that his prostate cancer and neck tumor are due to Agent Orange exposure. He claimed he was exposed to Agent Orange in Okinawa when he was stationed at Camp Hanson. He reported that there have been numerous accounts made by veterans who were stationed in Okinawa that they offloaded and stored agent orange that the chemicals were sprayed there. The Veteran reported that while he was not stationed at Kadena Air Base, this is not the only base impacted in Okinawa. He reported that Kadena Air base is not far from Camp Hanson and the men from Camp Hanson visited this base often. In September 2015, VA issued a memorandum where they reported that they have determined that the information required to corroborate the claimed Agent Orange exposure described by the Veteran was insufficient to send to the US Army and Joint Service Records Research Center (JSRRC). They indicated the efforts made to obtain the evidence needed to corroborate the Veteran's claim. In March 2016, another VA memorandum was issued where the VA, again, determined that the information required to corroborate the claimed Agent Orange exposure described by the Veteran was insufficient to send to the US Army and JSRRC. They listed efforts made to obtain the information necessary to corroborate the Veteran's claimed herbicide exposure. In April 2016 correspondence, the Veteran reported that while stationed in Okinawa, he was assigned to a rifle demonstration platoon. He reported that they would demonstrate tactics for the Marines. He reported that during downtime on weekends, they would go to Kadina Air base to relax and have a good time. He said he spent as much time there as possible, sometimes four times a week. Following the November 2019 Board remand, the VA associated with the claims file a January 2013 report entitled "Investigations into the Allegations of Herbicide Orange on Okinawa." The report was funded by the United States Army Public Health Command. The report confirmed that during the past few years, there have been an increasing number of US veterans alleging exposure to agent orange while serving at military installations in Okinawa during the Vietnam Era. After an extensive search of all known and available records, there were no documents found that validated the allegations that Agent Orange was involved in these events, nor were there records to validate that Agent Orange was shipped to or through, unloaded, used, or buried on Okinawa. Entitlement to service connection for prostate cancer and a thyroid disability is not warranted on a presumptive basis because the evidence does not establish that the Veteran was exposed to tactical herbicides including Agent Orange, during service. The Veteran has a current diagnosis of prostate cancer and a thyroid disability. Thus, the only remaining question is whether the prostate cancer and/or thyroid disability is due to any other in-service injury or disease. While the Veteran sincerely believes that he was exposed to Agent Orange during his service in Okinawa, the record is void of any evidence to corroborate those assertions. As noted above, efforts were made in February 2013, September 2015, and March 2016 in order to corroborate the Veteran's contentions. Likewise, the January 2013 report submitted by the VA thoroughly explains the investigation conducted to verify whether US veterans who served in Okinawa were exposed to Agent Orange. The report addressed allegations that Agent Orange was involved in various events in Okinawa including tactical herbicide testing and evaluations in the jungle areas; it addressed whether Agent Orange and tactical herbicides were shipped to or through, unloaded on or used in Okinawa; and refuted other statements made by Veterans. The document expressly indicates that an in-depth search of historical records and information was conducted with the conclusion that Agent Orange was not involved in any event in Okinawa. The statements submitted from the Veteran, no matter how sincere, are not supported by any corroborating evidence. The documented information obtained from the service department and independent record-keepers, as summarized above, outweighs the Veteran's lay assertions that he was exposed to Agent Orange during active duty. Therefore, the most probative evidence of record is against a finding that the Veteran was exposed to herbicides during his active military service. Additionally, the Veteran has not alleged, and the record does not reflect, that his prostate cancer and thyroid disability are in any other way related to service. The Veteran's service treatment records do not reflect diagnosis, treatment, or complaint of any symptoms related to prostate cancer or a thyroid disability. Medical treatment records reflect that the Veteran was diagnosed with prostate carcinoma in November 2004 and has received treatment for it since. As for the Veteran's thyroid, VA treatment records reflect that he had a non-toxic multinodular goiter since 2004 with substernal extension and tracheal narrowing and is now status post total thyroidectomy, done in December 2020, with post-op hypothyroidism. The record does not reflect that the Veteran at any time had a malignant tumor of the thyroid. The Veteran has not submitted any evidence or argument showing any type of relationship between his prostate cancer and thyroid disability and his active military service, outside of his contention of agent orange exposure. Although the Veteran may believe that his prostate cancer and thyroid disability is related to herbicide exposure, his opinion in this regard is not competent. In this regard, the question of the etiology of the Veteran's disabilities falls outside the realm of knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Finally, on remand, the RO was requested to ensure that all provisions of M21-1 Par IV.ii.1.H.7 were followed regarding verifying the Veteran's herbicide exposure while stationed in Okinawa. A request was made to review the inventory of herbicide operations maintained by the Department of Defense to determine whether herbicides were used or tested in Okinawa Japan during the time the Veteran was stationed there. There was an additional request to verify his exposure from JSRRC based on his correspondence regarding his visits to Kadena Air Base. As noted above, the VA associated with the claims file a report entitled "Investigations into the Allegations of Herbicide Orange on Okinawa" where it was confirmed that Agent Orange and other tactical herbicides were not used in Okinawa. An effort to verify this exposure for the fourth time through JSRRC would be futile as the Veteran has not submitted anymore evidence to support his claim that Agent Orange was used in Okinawa and he was exposed during his deployment there. Thus, there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, for the foregoing reasons, the preponderance of the evidence is against the claim for service connection for prostate cancer and a thyroid disability, to include as due to herbicide exposure. The evidence fails to show that the Veteran served in Vietnam or the territorial sea, the Korean DMZ, at or near Thailand, or has otherwise been exposed to herbicide agents. The benefit of the doubt doctrine is not for application, and entitlement to service connection for this disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral carpal tunnel syndrome. The Veteran contends that his diagnosed bilateral carpal tunnel syndrome is due to his MOS as a rifleman. Specifically, the Veteran reported that he performed many repetitive motions with his hands while he served in the Marines. He reported that during his firearms training, he was constantly firing weapons. His initial training consisted of 30 consecutive days where he was constantly firing rifles and other weapons to qualify as a rifleman. He participated in regular and extensive drills throughout his time. He reported that when he was stationed in Cuba, he had to manually dig an 800 foot long, chest high ditch. He was often required to load and offload heavy cargo. He reported that all of these activities, and others, involved repetitive use and straining of his right hand. Pursuant to the November 2019 Board remand directives, the Veteran underwent an August 2021 VA examination where the clinician confirmed his diagnosis of bilateral carpel tunnel syndrome. The clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. However, she provided a contradictory nexus opinion. As rationale, she reported that a review of the claims file and relevant evidence did not show a diagnosis of carpal tunnel disability in service or otherwise related to service. She reported that he was discharged from military service in 1966 and the onset of carpal tunnel was in 2004. She reported that the statements where he reported that he was constantly firing weapons may have likely caused his carpal tunnel. The clinician's rationale does not fully support her nexus opinion that the Veteran's bilateral carpel tunnel was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, she reports that his statements regarding his MOS as a rifleman may have likely caused his carpal tunnel; but, then opines to the contrary without explaining the reason for the contradiction. Thus, an addendum opinion is warranted to reconcile the conflicting medical opinion and rationale from the August 2021 VA clinician. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Arrange to obtain from an appropriate clinician an addendum opinion addressing the conflicting August 2021 medical opinion. Only arrange for the Veteran to undergo an examination if one is deemed necessary in the judgment of the clinician designated to provide the opinion. The clinician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral carpal tunnel is related to his active military service, to include his MOS as a rifleman. 1. The clinician should also provide a complete rationale, with consideration and discussion of all lay assertions, to include the Veteran's assertions as to the nature, onset, and continuity of his symptoms. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.