Citation Nr: 21031561 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-03 028 DATE: May 24, 2021 ORDER Service connection for residuals of larynx cancer is granted. FINDING OF FACT The Veteran's larynx cancer was a result of presumed exposure to herbicide agents, such as Agent Orange, during Air service in Thailand, during the Vietnam War. CONCLUSION OF LAW The criteria for service connection for residuals of larynx cancer are met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to September 1975, including service in Thailand, during the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing in February 2021 before the undersigned Veterans Law Judge and a transcript of the hearing is associated with the record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The diseases presumptively associated with herbicide exposure include respiratory cancers (to include cancer of the larynx), and soft-tissue sarcoma. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C. § 1113(a); 38 C.F.R. § 3.307(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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)(iii); 38 U.S.C. § 1116(f). "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). Despite the absence of a regulation, VA has established procedures under which it will concede exposure to herbicides during service in Thailand if certain conditions are met. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for residuals of larynx cancer is granted. The Veteran contends that he had larynx cancer related to his service, to include his exposure to herbicide agents in Thailand. The Veteran testified at his February 2021 Board hearing that he never smoked or used tobacco. He worked in aircraft maintenance on Korat Air Base, Thailand, during the Vietnam war. His job as an aircraft mechanic was at the center of the base, away from the perimeter where herbicides were routinely sprayed to control vegetation. However, one of his extra duties was as a member of the base fire crash rescue detail, which often brought him to within 100, 60 and even 40 feet of the perimeter fence. This brought him often well within the 1500 feet cordon of the perimeter fence affected by cancer-causing herbicides, during his 12 months stationed there during the Vietnam war. The Veteran underwent a VA larynx examination in October 2017. The examiner found based on the record that the Veteran was diagnosed with neoplasm of the larynx, aphonia, and he underwent a laryngectomy in April 2013. The Veteran currently has a diagnosis of residuals of larynx cancer. This satisfies the first requirement for service connection, a current disability. The VA concedes that herbicides were sprayed at Korat Royal Thai Air Force Base (RTAFB) during the Vietnam War. Review of the Veteran's military personnel record received in the claims file in February 2017, shows he was stationed at Korat RTAFB from 1973 to 1974, and that he assisted in Crash Recovery Operations. His Form DD 214 lists his military occupational specialty as aircraft maintenance technician. He reported in lay statements and testified at his hearing that his duties as a aircraft technician and member of the emergency crash response team frequently placed him very near the perimeter fence. This confirms the in-service event, herbicide exposure on a factual basis, not the presumption provided by 38 C.F.R. § 3.309. This verification of herbicide exposure satisfies the second requirement for service connection. The Veteran's file sufficiently supports his testimony, which the Board finds credible. Based on the facts of record, a current disability, residuals of larynx cancer, and actual herbicide exposure, the Board grants service connection for the Veteran's current disability, residuals of larynx cancer, on a factual basis. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, Associate 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.