Citation Nr: 21040015 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-12 214A DATE: July 2, 2021 ORDER Entitlement to service connection for thyroid cancer is denied. Entitlement to service connection for esophageal cancer is denied. Entitlement to service connection for lung cancer is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's thyroid, metastatic esophageal, and metastatic lung cancer manifested during, or within one year, of active service discharge; or is etiologically related to service, including as a result of exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for thyroid cancer have not been met. 38 U.S.C. §§ 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 through June 1971. The Veteran died in September 2016. His surviving spouse has been properly substituted as the Appellant. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. Service connection for malignant tumors may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, this legal presumption is inapplicable because the Veteran's cancers manifested several years after discharge. VA has also established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116 ; 38 C.F.R. § 3.309 (e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307 (d). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 (the Vietnam Era). 38 C.F.R. § 3.307 (a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). Exposure to herbicide agents has also 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). 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. If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct/facts-found basis. Id. Entitlement to service connection for thyroid cancer, esophageal cancer, and lung cancer is denied. The Appellant contends that the Veteran's thyroid, esophageal, and lung cancers are related to his service, to include his exposure to herbicides during service in U-Tapao Royal Thai Air Force Bases (RTAFB). The record confirms diagnoses of thyroid cancer, esophageal, and lung cancers. See Medical Treatment Record-Non-Government Facility, receipt date 5/29/2014. Thus, the first element for establishing service connection has been satisfied. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; and whether his current disability is related to an in-service incurrence, if any. The November 2019 Board decision established the Veteran's exposure to herbicides during his service at U-Tapao RTAFB. Otherwise, treatment notes are silent for treatment, diagnoses, or complaints related to thyroid, esophageal, or lung cancers. The Veteran's exposure to herbicides during service satisfies the second element of an ia-service injury. The remaining question for the Board is whether the Veteran's thyroid, esophageal, and lung cancers are related to his in-service herbicide exposure. In April 2020, a VA examiner reviewed the existing record and opined that with the required probability, the Veteran's thyroid cancer did not occur in military service nor was it caused by his military service. The examiner explained that the cause of thyroid cancer is unknown but is not considered related to herbicide exposure. His diseases of the lung and esophageal are considered metastatic with the primary cancer being thyroid cancer. Based on the aforementioned, the Board finds that service connection for thyroid, esophageal, and lung cancers is not warranted. First, the Board notes that presumptive service connection based on chronic disease is not warranted, as the Veteran's thyroid, esophageal, and lung cancers manifested in 2014, which is decades after the Veteran's discharge. Similarly, although herbicide exposure has been conceded, thyroid and esophageal cancers are not listed as diseases entitled to presumptive service connection due to herbicide exposure. 38 C.F.R. § 3.309 (e). While lung cancer is listed under 38 C.F.R. § 3.309 (e), service connection cannot be presumed per VA policy unless the lung is the primary cancer site. The Veteran's primary site is indisputably his thyroid, with his lung cancer constituting a metastasis. Thus, presumptive service connection is also not available for the Veteran's lung cancer under 38 C.F.R. § 3.309. Although presumptive service connection is not available for the Veteran's thyroid, esophageal, and lung cancers, service connection may still be established on a direct basis. The Board finds, however, that service connection on a direct basis is also not warranted. In so finding, the Board finds the April 2020 VA examiner's opinion highly probative, as the opinion was rendered by a competent medical clinician and supported by adequate rationale. Further, the Veteran's service treatment records are silent for diagnoses or treatment related to thyroid, esophageal, or lung cancers. Neither the Appellant, nor her representative, has submitted specific arguments or alternative medical opinions relating the Veteran's cancers to his service. While it has been asserted that his thyroid, esophageal, and metastatic lung cancers are related to his herbicide exposure, again, there is no competent evidence to support this theory. Although the Appellant sincerely believes that the Veteran's thyroid, esophageal, and lung cancers are related to his service. The Appellant is a layperson and lacks the training/expertise to opine competently on medical questions such as those presented in the instant case. Lay statements are not competent evidence regarding diagnosis or etiology in such case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007), Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence is against finding that service connection is warranted for the Veteran's thyroid, esophageal, and lung cancers. As such, the claims are denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.