Citation Nr: 21011172 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-33 986 DATE: March 1, 2021 REMANDED Entitlement to service connection for a heart disorder (claimed as coronary artery disease), to include as due to herbicide exposure, is remanded. Entitlement to service connection for a neurological disorder (claimed as tremors), to include as due to herbicide exposure, is remanded. Entitlement to service connection for a skin disorder (claimed as cutaneous pre-cancerous malignancy and skin cancer), to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from June 1968 to August 1974, to include service at Nakhon Phanom Royal Thai Air Force Base (RTAFB) and Ubon Airfield, Thailand. He did not serve in the Republic of Vietnam. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a December 2019 Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. During the hearing, the Veteran submitted additional written evidence. Although the Veteran claimed entitlement to service connection for coronary artery disease, tremors and skin cancer and cutaneous precancerous malignancy, the Board has more broadly recharacterized the claims based on the medical evidence submitted to ensure complete consideration of the claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (The scope of a claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). 1. Entitlement to service connection for a heart disorder is remanded. 2. Entitlement to service connection for a neurological disorder is remanded. 3. Entitlement to service connection for a skin disorder is remanded. Issues 1-3. The Veteran contends that he has coronary artery disease, tremors, and skin cancer is due to or the result of herbicide exposure during his active service at Nakhon Phanom RTAFB and Ubon Airfield, Thailand as well as stateside at Lockbourne Air Force Base in Ohio. See Hearing Transcript at 3, 5 (December 2019). Preliminarily, resolving any doubt in the Veteran's favor, the Board finds that there is credible evidence that he was exposed to herbicide agents during his active service in Thailand. During his hearing, the Veteran testified that he was exposed to herbicide agents as a result of working on C-123 aircraft contaminated with Agent Orange while he was stationed at Nakhon Phanom RTAFB, Ubon Airfield, Thailand and at Lockbourne Air Force Base in Ohio. See Hearing transcript at 3. The Veteran’s service personnel records show his military occupational specialty (MOS) was aviation navigation systems specialist. The Veteran testified that he worked daily as an avionics technical expert in the flight maintenance shops and on the flight lines at Nakhon Phanom RTAFB and Ubon Airfield, which were located within 500 meters of the base perimeters. He further testified that the south border of Nakhon Phanom RTAFB was directly adjacent to the flight line, and he was thus able to see the fence line from where he worked. See Hearing Transcript at 6-7 He additionally testified that he came into frequent contact with the base perimeter as he married a Thai national and consequently, lived off post. He indicated that he crossed the perimeter at least twice daily going back and forth between the base and his home. See Hearing Transcript at 4 and 7. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The presumption is applicable where the disease manifests to a compensable degree in a veteran who had active service for at least 90 days in the Republic of Vietnam between January 9, 1962 and May 7, 1975, even where there is no record of such disease during service. Id. VA regulations also provide that veterans who served in the Air Force and 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 will be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). The phrase “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means the veteran was assigned to a squadron that had been permanently assigned one of the affected aircraft and the veteran had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Id. The regulations contain no express provisions concerning exposure to herbicide agents in Thailand or its RTAFBs. VA has determined that special consideration of exposure to an herbicide agent on a factual basis should be extended to veterans who served on or near the perimeters of certain RTAFBs. See M21-1, Part IV.ii.1.H.4.b; see also Overton v. Wilkie, 30 Vet. App. 257 (2018). In pertinent part, exposure to an herbicide agent will be conceded on a facts-found basis where a veteran served in the United States Air Force during the Vietnam Era at one of the Royal Thai Air Bases (RTAFB) as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. In this case, the Veteran did not serve in the Republic of Vietnam, but he did serve at in Nakhon Phanom RTAFB and Ubon Airfield, Thailand during the Vietnam era (February 1961 to May 1975). Hence, the Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In addition, the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was exposure to herbicide agents outside of the Republic of Vietnam. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Based on the credible evidence discussed below, the Board concludes that, as a threshold matter, the Veteran was exposed to herbicide agents during his active service at Nakhon Phanom RTAFB, and Ubon Airfield, Thailand. In this case, the record contains a memorandum/formal finding issued in June 2016 by the St. Paul RO indicating they were unable to verify the Veteran's herbicide exposure from C-123 aircraft. The RO determined the Veteran did not service Operation Ranch Hand (ORH) C-123 aircraft, which are affected aircraft under the regulation, during his service at Lockbourne Air Force Base. Although ORH C-123 aircraft were located at Lockbourne Air Force Base at the time the Veteran was there (1969 to 1970), the Veteran’s assigned squadron, the 4408th Combat Crew Training Squadron, was not recorded as having operated or maintained the ORH C-123 aircraft. Hence, the RO found the Veteran had not regularly and repeatedly operated or maintained affected C-123 aircraft at Lockbourne Air Force Base pursuant to 38 C.F.R. § 3.307(a)(6)(v). The Board notes, however, that the RO did not consider whether the Veteran’s other assigned squadron at Lockbourne Air Force Base, the 317 Field Maintenance Squadron (FMS) (June 1969 to September 1969), had been permanently assigned one of the affected C-123 aircraft. See Veteran’s service personnel records (chronological listing of service/organization and station of assignment). With respect to the Veteran’s assertion of herbicide exposure in Thailand, the RO indicated he did not provide sufficient information detailing his herbicide exposure in Thailand nor did he provide any information concerning the duties that may have taken him to the base perimeter in Thailand. Here, the Veteran’s service personnel records reveal he was assigned to the 56th Avionics Maintenance Squadron at Nakhon Phanom RTAFB from January 1970 to January 1971. He was assigned to the 8th Avionics Maintenance Squadron at Ubon Airfield, Thailand from July 1971 to July 1973. Lastly, he was assigned to the 40th Aerospace Rescue and Recovery Squadron (ARRS) at Nakhon Phanom RTAFB from July 1973 to July 1974. Throughout his service in Thailand, the Veteran’s MOS remained avionic/airborne navigation equipment repairman. A performance report issued by the 56th Avionics Maintenance Squadron located at Nakhon Phanom RTAFB shows his duties included performing maintenance on navigational systems installed on several types of aircraft including the C-123. He performed bench checks, troubleshooting and field level repair on electronic navigation in the shop. His evaluator reported the Veteran’s superior performance of duty in both flight line and shop maintenance. The evaluator further indicated the Veteran was used extensively on the flight line because of his knowledge of aircraft systems. See Service Personnel Records/Airman Performance Report (September 1970). Several months later, another performance report shows the Veteran continued to work with the navigational systems on several aircraft, including the C-123. His evaluator stated the Veteran was considered the expert on flight line aircraft and had been called upon on numerous occasions to troubleshoot and repair recurring malfunctions. See Service Personnel Records/TSGT, SSGT and SGT Performance Report (January 1971). The Board finds the Veteran's hearing testimony is consistent with his service personnel records, which show he served on active duty in Thailand at Nakhon Phanom RTAFB and Ubon Airfield as an aviation airborne navigation equipment repairman for a total of four years (January 1970 to July 1974); that he repaired and maintained the navigational systems inside and outside (i.e. antenna) of aircraft, including the C-123; and that his duties and circumstances of his service in the maintenance shop and on the flight line placed him near the base perimeter. Finally, the Board finds the Veteran’s testimony credible with respect to his marriage to a Thai National while he was still stationed in Thailand. He testified that they lived off post which required him to take a bus or taxi everyday across the base perimeter to travel to and from work. In this regard, the Veteran’s service personnel records contain a change in his travel orders dated June 1974 to reflect authorized travel for his Thai National dependent (wife named on order) from Bangkok, Thailand to the U.S. as part of the Veteran’s separation processing. In this case, there is no affirmative evidence that contradicts the Veteran's reports that he performed maintenance and troubleshooting on C-123 aircraft, that his military duties on the flight line brought him in frequent contact, within 500 yards, of the perimeter of Nakhon Phanom RTAFB, and that he crossed the perimeter twice daily because he lived off post as a result of his marriage to a Thai national. Accordingly, the Veteran’s exposure to herbicide agents is established on a facts-found basis in light of the evidence demonstrating that the types, places, and circumstances of his active service were consistent with placing him at and near the base perimeter at Nakhon Phanom RTAFB. Next, while the Veteran’s current heart, neurological and skin disabilities, as documented in his private medical records, are not considered enumerated diseases for which service connection can be granted on a presumptive basis under 38 C.F.R. § 3.309(e), the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The Veteran seeks service connection for coronary artery disease which he asserts is due to his in-service herbicide exposure. The Board notes, however, the medical evidence, which consists primarily of private medical records, does not demonstrate he has been diagnosed with coronary artery disease, ischemic heart disease, or any other cardiovascular disability recognized as associated with herbicide exposure under 38 C.F.R. § 3.309(e). Rather, his treatment records reflect diagnoses of hypertensive heart disease and carotid artery disease. See e.g. progress note (Access Health Main Group/Dr. Michael Reynolds) (November 2019). The Veteran also seeks service connection for a neurological disorder due to in-service herbicide exposure. His private medical records show a current diagnosis of essential tremor affecting the right upper extremity. See e.g. progress note (Access Health Care Physicians) (July 2017). The Veteran’s neurologist indicated the Veteran’s essential tremors began in the early 1980’s and opined that his long history of chemical exposure to Agent Orange, including in Vietnam and elsewhere, has contributed to his tremors. She additionally opined that it is more likely than not that absent a family history of tremors, some chemical exposure contributed to his condition. See medical statement (Dr. Theresa Zesiewicz) (November 2019). Finally, the Veteran claims that his skin cancer was caused by his in-service exposure to herbicide agents. The Veteran’s dermatologist provided a statement indicating he has a history of malignant melanoma, squamous cell carcinoma, basal cell carcinoma and sarcoma. He also has a history of Grover’s disease/transient acantholytic dermatosis (TAD) of the trunk. The dermatologist attributed the Veteran’s various skin disorders, which he characterized as multiple cutaneous/systemic abnormalities, to his long and significant Agent Orange exposure. See medical statement (Dr. Oliver Reed) (September 2017). The Veteran’s service treatment records (STRs) reveal that he was treated during service for various skin complaints. For instance, in September 1969, he was diagnosed with ringworm and tinea corpus; he was noted to have lesions and pustules on his buttocks and neck. In June 1969, the Veteran was treated for a diffuse rash all over his body that he reported had been ongoing for the past two years. During the visit, the Veteran was diagnosed with tinea versicolor. The Veteran was treated for a fungus all over his chest and back in February 1970. Lastly, a treatment record dated October 1973 notes the Veteran had a rash on his neck for the last five days. The Board acknowledges the Veteran submitted favorable medical opinions from his neurologist and dermatologist. The Board, however, finds the opinions are inadequate to decide the appeal. The neurologist’s opinion is speculative and links the Veteran’s essential tremor to Agent Orange largely based on the absence of a family history of essential tremors. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). In addition, the neurologist’s opinion does not reflect a review of the relevant evidence in the claims file, including the Veteran's STRs and service personnel records which would show the Veteran did not have service in Vietnam. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the value of a medical opinion may be reduced when the prior relevant clinical records and other evidence were not reviewed in formulating an opinion). Third, the private opinions do not contain clear conclusions with supporting data along with a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Given the foregoing, the Board finds that VA's duty to obtain VA examinations has been triggered in this case and medical opinions are required addressing whether any current heart, neurological and skin disabilities are related to the Veteran’s service, to include presumed herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers for his heart, neurological and skin disorders and symptoms. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination with the appropriate clinician to determine the nature and etiology of all heart disorders shown during the appeal period. Any and all diagnostic studies, tests, and evaluations deemed necessary by the examiner should be performed. The entire claims file, to include a copy of this remand, must be made available to and reviewed by the clinician. The examiner is asked to address the following: (a) Identify all current heart disorders and specifically indicate whether the Veteran has ischemic heart disease. In so doing, the examiner should consider the Veteran’s private medical records and indicate whether carotid artery disease and hypertensive heart disease are forms of ischemic heart disease. (b) For each heart disorder identified other than ischemic heart disease, the examiner should opine whether it is at least as likely as not that the disorder manifested in service, within one year of service separation or is otherwise related to the Veteran’s active service, including any symptomatology and conceded herbicide exposure therein. An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Schedule the Veteran for a VA examination with the appropriate clinician to determine the nature and etiology of all neurological disorders, to include essential tremors, shown during the appeal period. Any and all diagnostic studies, tests, and evaluations deemed necessary by the examiner should be performed. The entire claims file, to include a copy of this remand, must be made available to and reviewed by the clinician. The examiner is asked to address the following: (a) Identify all diagnosed neurological disorders. In so doing, the examiner should consider the Veteran’s private medical records indicating he has had essential tremors since the 1980s. (b) The examiner should opine whether it is at least as likely as not that the neurological disorder manifested in service, within one year of service separation or is otherwise related to the Veteran’s active service, including any symptomatology and conceded herbicide exposure therein. An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 4. Schedule the Veteran for a VA examination with the appropriate clinician to determine the nature and etiology of all skin disorders shown during the appeal period. The entire claims file, to include a copy of this remand, must be made available to and reviewed by the clinician. The examiner is asked to address the following: (a) Identify all diagnosed skin disorders. In so doing, the examiner should consider the Veteran’s private medical records indicating he has a history of malignant melanoma, squamous cell carcinoma, basal cell carcinoma and sarcoma, and Grover’s disease/transient acantholytic dermatosis (TAD) of the trunk. (b) The examiner should opine whether it is at least as likely as not that the skin disorder(s) manifested in service, within one year of service separation or are otherwise related to the Veteran’s active service, including any symptomatology and conceded herbicide exposure therein. The medical opinion should also reflect consideration of the Veteran’s STRs showing that in June 1969, he complained of a diffuse rash all over his body for the past 2 years and was diagnosed as having tinea versicolor; the diagnosis of tinea corpus and ringworm in September 1969; treatment for fungus all over the Veteran’s chest and back in February 1970; and a note dated October 1973 showing the Veteran had a rash on his neck for the last five days. An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.