Citation Nr: 21009705 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-22 729 DATE: February 23, 2021 ORDER Entitlement to service connection for colon cancer, to include as due to herbicide agent exposure is denied. Entitlement to service connection for liver cancer, to include as due to herbicide agent exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran was not exposed to herbicide agents during service. 2. The Veteran’s colon and liver cancers did not have their onset in service or within one year of service, and the record contains no indication that they are otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for colon cancer, to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for liver cancer, to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in United States Air Force from January 1966 to May 1969. He died in September 2013. The appellant is the Veteran’s surviving spouse who has been named as substitute claimant. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a VA Regional Office (RO). The Board previously remanded the claims in March 2020 to afford the Veteran a new VA examination to determine the etiology of the Veteran’s colon and liver cancers. As part of the requested medical opinion, the examiner was to specifically address the Veteran’s claimed exposure to Agent Orange from repairing airplane frames that sprayed Agent Orange over the Republic of Vietnam. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular disease (including hypertension) and colon and liver cancer (as malignant tumors) are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during active military service, certain diseases, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). There are no regulatory or statutory presumptions regarding herbicide exposure for Veterans who served in Thailand. However, Department of Defense (DoD) has confirmed 71 sites within the United States and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. As explained in an August 2010 memorandum associated in the claims folder, with regard to the Veteran’s Thailand service specifically, DoD confirmed the limited testing of tactical herbicides in Thailand from April 2, 1964, through September 8, 1964, but the sprayings were not near the Royal Thai Air Force Base or any U.S. Military Installation. Storage of Agent Orange was in Vietnam and not Thailand. Commercial herbicides were also confirmed to have been frequently used for vegetation control within the perimeters of air bases during the Vietnam Era. Therefore, if a veteran’s MOS placed him regularly within the base perimeter, he has a greater likelihood of exposure to commercial pesticides/herbicides. MOS duties such as those as security police or dog handlers, for example, are known to have had regular contact with the base of the perimeter of the air force bases. Given the information from DoD, the Board will concede that a veteran who served in Thailand between February 28, 1961 and to May 7, 1975 was exposed to herbicide agents if they are: (1) Air Force veterans who served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang as security policemen, security patrol dog handlers, or members of a security police squadron, or otherwise served near a base perimeter, as shown by their military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence; (2) Army veterans who served on a Royal Thai Air Force Base who affirmatively state they were involved with perimeter security duty, but only if there is additional credible evidence supporting their statement; or (3) veterans who served at a U.S. Army base in Thailand, were members of a military police unit or assigned a military police MOS, and who affirmatively state their duty placed them at or near the base perimeter. Thus, 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 agent exposure will be considered on the facts found on a direct basis. Entitlement to service connection for colon and liver cancer, to include as due to herbicide agent exposure, is denied. The Veteran asserted that his colon and liver cancers are related to herbicide agent exposure during service in Vietnam. Specifically, he asserted that he was stationed at Korat Air Force Base while serving Thailand and that he maintained airplanes that sprayed Agent Orange in Vietnam. He further contended that while performing his regular maintenance duties, he frequently had skin contact with the aircraft. The Board further notes, that in previous communications, the Veteran also asserted that he routinely came into contact with the perimeter of the base and was around the flight lines. The Veteran’s military personnel records reflect that he served with the 388th Field Maintenance Squadron as an airframe repairman at Korat Air Force Base in Thailand from May 1968 to June 1968. There is no indication in any of the Veteran’s military personnel records that any of his duties regularly placed him at or near the perimeter of the base nor on the flight lines. An August 2010 Defense Personnel Retrieval Information Systems (DPRIS) report concluded that it could not verify that the Veteran was exposed to herbicides while serving at Korat Air Force Base, Thailand. The records document that herbicides were sprayed in 1964 and 1965 in a coastal area near Pranburi, Thailand. Korat is not on the Department of Defense (DoD) listing of herbicide spray areas and test sites outside the Republic of Vietnam. In addition, available unit histories do not mention nor document any herbicide spraying, testing, or storage at Korat Air Force Base. Although the Veteran’s tour of duty fell within the time frame between February 28, 1961 and to May 7, 1975 (when use of herbicide agents in Thailand is acknowledged), his unit and the base at which he was stationed are not recognized as having exposure to Agent Orange. The regulatory presumption only applies to units which the DoD has determined were stationed at bases where it is known that herbicide agents were used. The Board has reviewed the Veteran's lay statements in the record regarding his contended exposure and finds that he cannot opine on whether he was exposed to herbicide agents. His statements alone are not credible or competent evidence of herbicide agent exposure. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence to establish that such an event occurred during service). While the Veteran is competent to report his experiences (i.e. duties in and around Korat Air Force Base), it is incongruous with the official service records and the DPRIS findings. There is no official documentation that the Veteran had duties in or near the perimeter of the base or flight lines. Furthermore, there is no evidence that the Veteran came into contact with herbicide agents while repairing and maintaining airplane frames. The Board finds the contemporaneous documentation of record showing no service in or near a base where herbicide agents were used, stored or transported more probative than the Veteran's current belief he was exposed to herbicides while performing maintenance duties on Korat Air Force Base, Thailand. The Board finds that the Veteran's statements, provided more than 40 years after the alleged exposure, are insufficient to establish exposure to herbicide agents during his service while stationed in Thailand. The Veteran is not presumed exposed to herbicide agents during his service in Thailand and the preponderance of the evidence is against a finding that he was exposed to herbicide agents during his service. Based on the foregoing, service connection for colon and liver cancers on a presumptive basis is not warranted. Consideration has been given to the fact that the claim can still be reviewed to determine if service connection can be established on a direct basis, even if a veteran is found not to be entitled to a regulatory presumption of service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has not claimed, and the evidence does not otherwise suggest, that his cancers began during service or within one year of service discharge. The Veteran’s service treatment records (STRs) include no complaints of, treatment for, or diagnoses of colon or liver cancer in service, nor do they show that there were any manifestations of the conditions beginning in service. The post-service medical evidence does not document any cancers within the one-year presumptive period following separation of service. The Veteran’s medical records indicate he first complained of abdominal pain in February 2003. Shortly thereafter, testing revealed he had colon cancer. In April 2008, a pathology report confirmed his diagnosis of colon cancer but also indicated that it had metastasized to his liver. A December 2009 hematology/oncology report noted the Veteran had colon cancer and metastatic disease of the liver. Therefore, his cancer began over 40 years after service. A VA medical opinion was obtained for the assistance of this claim in April 2020. The examiner opined that the Veteran’s colon cancer, which later metastasized into the liver, was less likely than not related to service, to include Agent Orange exposure. (The examiner also clarified that the Veteran’s cancer was that of colon cancer that had subsequently metastasized to his liver and, therefore, the cancer was that of colon cancer and not liver cancer). The examiner further noted that the Veteran’s claimed cancers were not on the presumptive list for herbicide exposure during military service. The examiner further explained that the Veteran’s STRs and medical records did not “demonstrate” that his cancers were caused by herbicide agent exposure. The examiner reviewed the extensive medical records of the Veteran and noted that he was unable to find any medical professional, including the Veteran’s oncologist, that opined that the Veteran’s cancer was due to his military service or herbicide agent exposure. Ultimately, the examiner declined to find that a nexus between the Veteran’s claimed condition of colon cancer with metastatic liver disease and military service, to include exposure to herbicide agents. The Board finds the April 2020 VA examination persuasive. It is based on a detailed review of the Veteran’s medical and military history, and review of the Veteran’s service treatment records and post-service records. Also compelling, no medical professional has ever linked the Veteran’s cancer to any incident of service. In short, the Board finds the Veteran’s colon cancer, which later metastasized into the liver, did not manifest in service or for decades after service and no medical professional has attributed his cancer to any incident of service, nor is the Veteran competent to assert such a link. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As such, the preponderance of the evidence is against the claim and service connection must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.