Citation Nr: 21010864 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 190129-1543 DATE: February 25, 2021 REMANDED Entitlement to service connection for melanoma with lung metastasis, to include as due to exposure to herbicides and jet fuel is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to November 1969. The Veteran was initially denied entitlement to service connection for lung cancer due to herbicide exposure in a September 2017 rating decision under the Legacy system. In October 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) opt-in election form. See 38 C.F.R. § 3.2400(c)(1). On this form, he selected the higher-level review (HLR) lane. A November 2018 RAMP/HLR rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In an April 2019 Board of Veterans’ Appeals (Board) decision the Board denied the service connection claim. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court) which, in an April 2020 Order, vacated and remanded the issue for action consistent with a Joint Motion for Remand (Joint Motion). In November 2020, the Board remanded the issue for additional development. It is again before the Board for further appellate review. JMR Findings In the April 2020 JMR, the parties agreed that the Board erred in utilizing the guidance in M21-1 Adjudication Procedures Manual (M21-1) relevant to Veteran’s present claim without acknowledging it directly. Overton v. Wilke, 30 Vet. App. 257, 264 (2018). In the instant case, the Board has cited to the relevant provisions of the M21-1. The parties to the JMR additionally agreed that the Board needed to address whether it was required to make additional, reasonable efforts to assist the Veteran in obtaining copies of the Department of Defense’s December 1968 Project CHECO report titled “Attack on Udorn” and its February 1973 Project CHECO report titled “Base Defense in Thailand.” The Board’s November 2020 remand instructions included obtaining these documents and adding them to the record. These documents had been associated with the Veteran’s claims file. Finally, the parties agreed that the Board erred in relying on the absence of evidence that the Veteran’s duties placed him near or at the perimeter of Udorn. In its April 2019 decision, the Board noted that nothing in service personnel or medical records showed that the Veteran served close to the perimeter, and the JSRRC did not find evidence he was exposed to herbicides in service. The reliance on the absence of records was not adequately explained, as the Board first must lay a foundation for why it would have expected the fact in question to be recorded, making its absence significant. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) (citing Fed. R. Evid. 803(7)); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). As will be explained further below, upon review of the evidence, the Board finds that, resolving reasonable doubt in favor of the Veteran, the evidence is sufficient to support a finding that his duties and activities placed him at or close to the perimeter of the base at Udorn. Service connection - Melanoma with Lung Metastasis The Veteran has contended that his melanoma with lung metastasis is due to his exposure to herbicides during service. Specifically, he contends that presumptive service connection is warranted on this basis due to his service in Thailand. Exposure to herbicide agents has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand: VA Compensation Service has acknowledged that there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). Specifically, VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. To warrant a finding of herbicide agent exposure at one of the above listed air bases, a veteran must have served as an Air Force 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. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.a-b (Apr. 7, 2018). If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct/facts-found basis. Id. The Veteran’s branch of service was the Air Force. All of his service was during the Vietnam Era. 38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f). His service personnel records reflect that he was stationed at Udorn RTAFB for 9 months, from February to November 1969. Udorn is one of the RTAFBs for which service on or near the base perimeter establishes herbicide exposure. The Joint Services Records Research Center (JSRRC), following review of official military documents, was not able to verify herbicide exposure of military personnel stationed at specified RTAFBs during the Vietnam Era. This includes the Veteran concerning whether or not he was on or near the perimeter of Udorn then, as set forth in memorandums dated in September 2016 in connection with a previous claim and September 2017 in connection with the instant claim. His records did not confirm that his duties took him on or near the base perimeter. As noted above, the parties to the JMR found that the Board’s reliance on the absence of evidence in these records was inadequately explained in that it was unclear why the Board found the above service records and JSRRC findings probative to the factual finding of whether the Veteran’s duties placed him at or near the perimeter of Udorn. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) (citing Fed. R. Evid. 803(7)); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). In the instant case, upon review, the Board finds that it is not likely that these records would provide evidence as to whether the Veteran’s duties or activities placed him near the perimeter of the base. As such, these records and reports provide very limited probative evidence against the Veteran’s contentions of being close to or at the perimeter of Udorn while stationed there. The Veteran has recounted performing his duties primarily in the revetments and trim pad areas while stationed at Udorn. He noted that these areas were near the base perimeter. He additionally recounts that his barracks was near the base perimeter and that he walked along the base perimeter road daily. In connection with a previous claim, statements from W.C. and G.W. were submitted in 2015. Each indicates having served as aircraft fuel systems mechanics or similar with the Veteran at Udorn, and each echoes the aforementioned information provided by him. Black and white photocopies of photographs purportedly of Udorn finally were submitted in connection with the instant claim. The Board finds that the Veteran and fellow service members are competent to discuss facts or circumstances concerning experiences during active service, including reports of service on the flight line, or otherwise near the base perimeter. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Determining events that occurred decades ago in countries far from the United States is often difficult. Neither the lay statements nor the service records definitively demonstrate whether or not the Veteran's duties placed him at or near the perimeter of the Udorn RTAFB. There is no definition of what qualifies, or does not qualify, as or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. Significantly, the JSRRC findings cannot and did not affirmatively state that the Veteran was not exposed to herbicides during his service at the Udorn RTAFB, only that the records reviewed did not confirm such exposure and are given limited probative weight. In this case, the Board finds that the Veteran’s statements, along with those of his fellow service members, support a finding that the Veteran’s duties and activities at or near the perimeter of the Udorn RTAFB. As such, exposure to herbicides is established. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307 (d) are also satisfied. Melanoma is not associated with herbicide exposure. 38 C.F.R. § 3.309(e). Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) are associated with herbicide agent exposure. Id. Service connection cannot be presumed per VA policy, however, unless the lung is the primary cancer site. The Veteran’s primary site is indisputably his skin, with his lung cancer constituting a metastasis. While presumptive service connection is not warranted, direct service connection still may be established. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran’s contention regarding his herbicide agent exposure must be addressed in a direct service connection context since presumptive service connection is foreclosed. In this case, the Veteran has submitted two private opinions dated in March 2016 and January 2018 from a private provider who opined that the Veteran’s melanoma was caused by or highly consistent with herbicide agent exposure. However, these opinions did not include any rationale for the opinions. As such, these opinions are not probative. On remand, an opinion should be obtained as to whether the Veteran’s melanoma is attributable to his herbicide agent exposure. The matter is REMANDED for the following action: Obtain an opinion from an appropriate provider as to whether the Veteran’s melanoma with lung metastasis is at least as likely as not related to in-service exposure to herbicide agents. The examiner is advised that a negative opinion cannot be based solely on the fact that melanoma is not on the list of diseases that are presumptively associated with exposure to herbicide agents. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.