Citation Nr: 21077499 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 18-42 183 DATE: December 30, 2021 ORDER Entitlement to service connection for restrictive lung disease, malignant, to include as due to Agent Orange exposure, is granted. Entitlement to service connection for deep vein thrombosis, lymph vascular invasion to include as secondary to restrictive lung disease is granted. FINDINGS OF FACT 1. The Veteran has a diagnosis of metastatic lung cancer which is presumed to be related to his in-service herbicide exposure during his active military service in Thailand. 2. The Veteran's deep vein thrombosis was at least as likely as not caused by his now service-connected metastatic lung cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for metastatic lung cancer as a result of exposure to herbicides have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for deep vein thrombosis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to June 1974. In November 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for restrictive lung disease, malignant, to include as due to Agent Orange exposure, is granted. The Veteran contends his lung cancer is the result of exposure to herbicides while he was stationed in Udorn Airforce Base, Thailand, during the Vietnam Era. In a September 2016 VA examination, the Veteran was diagnosed with restrictive lung disease and metastatic lung cancer. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include lung cancer) to a degree of 10 percent or more at any time after service, he is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. §§ 3.307, 3.309(e). Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange (AO), unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6)(iii). Certain listed medical conditions, including diabetes mellitus, may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(e). The Department of Defense has also confirmed 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 bases 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. The Veteran's DD-214 confirms that the Veteran served 360 days in Thailand. He reported being stationed at Udorn Air Force Base from September 1971 to September 1972. His DD 214 also reflects he served as an Aircraft Maintenance Officer. In the November 2021 hearing, the Veteran stated that he would often travel the perimeter of the base as part of his job duties. He stated that engine testing was performed away from the maintenance areas, closer to the perimeter. He then noted that he was an avid jogger that would often run around the perimeter of the base. The Veteran recalled that there was no vegetation around the perimeter, yet he never saw lawnmowers being used around the base. In an April 2016 letter, the Veteran's treating physician stated that it was possible that the Veteran's exposure to herbicides resulted in his lung cancer. The physician stated that after review of the Veteran's military records, photos, CHECO report, and Army Field Manual, the use of herbicides at Udorn was obvious. He then stated that he believed that the Veteran was exposed to said herbicides as his duties placed him near the perimeter at the F4 trim pads. He also noted that the test cell and the Veteran's physical fitness exercise placed him near the perimeter. In a February 2016 statement the Veteran's spouse submitted a lay statement that supported much of the Veteran's statements. She recalled visiting the Veteran at Udorn Air Force Base in March 1972. She stated that the Veteran showed her his jogging route along the perimeter of the base and she remembered the lack of vegetation on base. She noted that the grass around the base was brown while the grass off base was green. In August 2018, a lay statement was submitted by J.H. He stated that he was a helicopter flight mechanic and maintenance manager at Air America's facility at Udorn Air Force Base. J.H. attested that he sprayed, and watched others spray, defoliant herbicides and Agent Orange to the perimeters at Udorn. He stated that the grassy areas next to the runways and buildings were often sprayed. He reported visiting the Veteran several times during this time period. J.H. noted that the Veteran's duties as Mike One placed him at the F4 trim pads next to the base perimeter and that the base perimeter road was utilized to get to various locations. In support of his claim, the Veteran submitted documents regarding his time at Udorn Airforce Base. He also submitted photographs that he took during his active service. The Veteran noted that there was no vegetation present in the photographs of the base. The photos indicated the location where the Veteran performed his job duties and the routes he traveled during his service in Thailand. The Board finds the Veteran to be both competent and credible in detailing his experiences in Thailand, and how he may have been exposed to herbicide agents, to include Agent Orange. He has been consistent throughout the period on appeal regarding his potential for exposure to herbicides, and his statements are consistent with the other evidence of record. The Board notes that the RO did not attempt to verify the Veteran's herbicide exposure. There is no Joint Services Records Research Center (JSRRC) Memorandum or formal finding associated with the claims file. However, the Board is ultimately persuaded by the Veteran's competent and credible testimony describing his in-service experiences. Despite the fact that there is no clear evidence of herbicide exposure due to his Thailand service shown in the record, the Veteran has been consistent in his reports about potential exposure to herbicides from working and living near the perimeter at Udorn. His lay statements were also consistently supported through lay statements provided by his wife, peer, and treating physician. His statements are consistent with the circumstances and conditions of his service in Thailand during the Vietnam era. 38 U.S.C. § 1154. Therefore, based on the Veteran's credible assertions, the Board finds that the Veteran was at least as likely as not exposed to herbicides and thus, service connection for lung cancer is warranted on a presumptive basis. The Board stresses that this determination was made on a facts-found basis. Put differently, the specific facts of this case, coupled with the credible evidence of record provided by this Veteran, establish that the Veteran at least as likely as not served on or near the perimeter of the Udorn Air Force Base in Thailand. Therefore, when resolving all reasonable doubt in his favor, service connection for lung cancer is warranted on a presumptive basis. 2. Entitlement to service connection for deep vein thrombosis, lymph vascular invasion to include as secondary to restrictive lung disease is granted. 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; 38 C.F.R. § 3.303(a). 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). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran alleges that his deep vein thrombosis, lymph vascular invasion, is caused or aggravated by his now service-connected metastatic lung cancer. First, the Board finds that there is a current disability. In a September 2016 VA examination, the Veteran was diagnosed with deep vein thrombosis. The Board also notes that the Veteran meets the second element for secondary service connection as he is now properly service connected for metastatic lung cancer. Third, the Board finds that the evidence of record does support a finding that the deep vein thrombosis is related to the Veteran's lung cancer. The Veteran was provided with a VA examination in September 2016 to evaluate both his lung cancer and his deep vein thrombosis. In the respiratory examination, the examiner noted that deep vein thrombosis was a residual condition or complication of the lung cancer. In the subsequent hematologic and lymphatic conditions VA examination, the examiner stated that the deep vein thrombosis was due to the diagnosed lung cancer. He stated that it was commonly accepted medical knowledge that hypocoagulable states such as the one that resulted in the Veteran's deep vein thrombosis, are commonly due to cancer. The Board finds this VA examination to be both probative and persuasive. As there is a positive medical opinion that is uncontradicted the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's deep vein thrombosis was due to his service-connected lung cancer. As such, after resolving reasonable doubt in the Veteran's favor, the Board finds the final element of service connection has been met. In conclusion, the Board finds that the competent and credible evidence of record is at least in equipoise that the Veteran's deep vein thrombosis is secondary to his service-connected metastatic lung cancer and service connection is granted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.