Citation Nr: 21041417 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-11 538 DATE: July 9, 2021 ORDER Entitlement to service connection for lung cancer is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The record does not establish that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active duty service. 2. The Veteran's diagnosed PTSD is not based upon a verified stressor CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.310 (2020). 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. In September 2018, the Veteran and the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. In February 2019, this matter was remanded by the Board for further development. The Veteran died in May 2020 during the pendency of the instant claims. The appellant is the Veteran's surviving spouse and has been recognized as a valid substitute claimant for the instant appeal. This matter has now been returned to the Board for further appellate action. Service Connection Lung Cancer Prior to his death, the Veteran asserted that his lung cancer was related to his active duty service. More specifically, the Veteran reported that he had been exposed to herbicide agents during service which resulted in his lung cancer disability. First, the Board notes that the Veteran's records reflect that he was diagnosed with lung cancer in 2013 with ongoing treatment until the date of his death in May 2020. The Veteran did not aver that his disability resulted from any other claimed in-service injury other than alleged exposure to herbicides. In his hearing before the Board in September 2018, the Veteran conveyed that he was exposed to herbicides during his deployment to Thailand. The Veteran testified that he had temporary assignment to the 25th Infantry combat unit which included deployments into Vietnam on three occasions, with each deployment into Vietnam averaging approximately a week and a half in time. The Veteran argued that it was during those temporary assignments that he was in Vietnam that he was exposed to herbicides. Alternatively, he previously argued through written communication in October 2014 that while in Thailand he handled large 55 gallon drums with orange color coding on the top which he believed signified coding for "agent orange." Here, the Veteran's service personnel records do not support the contention that he had active service in Vietnam. Extensive review and research was undertaken to corroborate the Veteran's assertion, including, but not limited to review of operational reports, Lessons Learned reports for the 25th Infantry Division and the 9th Logistical Command, NARA casualty database, and the Official Military Activities Report. None of which corroborated the Veteran's later arguments regarding service in Vietnam. In addition, the Veteran's service personnel records, including his DD Form 214, do not reflect military decorations or assignments which would demonstrate service in Vietnam during his overseas deployment. The Board also notes that the record reflects varying inconsistencies with the Veteran's account of his overseas service. In prior written communication to VA in May 2012, the Veteran detailed his military experience by stating that he "[w]ent through combat training and then was deployed initially to Kanchana[buri], Thailand. The Base was a supply base in the hills of Thailand across the border from Cambodia. From late 1968 thru 1969 we were deployed on recon missions into Cambodia and Phnom Phen [sic], rotated back to the US in 1970 where I finished my obligation at Fort Hood, Texas." See Correspondence, May 17, 2012. In March 2014, the Veteran provided written communication specifying that his overseas service included deployment to Thailand with periodic assignments to Laos and Cambodia, with no mention of service in Vietnam. In that writing, the Veteran also referenced performing duties pursuant to operation Ranch Hand from 1968 to 1969, performing herbicide testing. The Veteran's records do confirm that he was deployed to Thailand from March 5, 1969, to March 4, 1970. However, the Board notes that operation Ranch Hand did not exist in Thailand past 1964. The Veteran's assertion concerning the time frame allegedly spent in Vietnam has also varied throughout his relaying of his deployment details. In the Veteran's January 2015 notice of disagreement, he asserted that he had spent three months in Vietnam. In his hearing before the Board he stated that it was three separate occasions of approximately one week to one and a half weeks each time. In his initial communications with VA, he asserted that his deployment included assignments in Thailand, Laos, and Cambodia, with no mention of any period of time spent in Vietnam. The Board does acknowledge that there was sporadic use of non-tactical (commercial) herbicides within fenced perimeters at military bases in Thailand. However, the Veteran did not assert, nor do his records support, that he was assigned to any of the recognized military bases with such exposure. Moreover, his military occupational specialty (MOS) as special purpose equipment repair specialist would not place him near those air base perimeters was such exposure occurred. Given the inconsistent accounts of the Veteran's overseas service and the lack of any probative corroborating evidence, the Board finds that the Veteran's lay assertions provide little to no probative value. The most probative evidence of record, the objective documentation of the Veteran's overseas deployment, his MOS, and additional service personnel records, weighs heavily against the claim and does not support any finding that the Veteran was exposed to herbicides during his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for lung cancer is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection PTSD The Veteran argued that he had a diagnosis of PTSD as a result of in-service events. Specifically, the Veteran asserted that he was on long range recon patrol along the Mekong Delta when he and other members of his unit were engaged in a firefight, and sustained U.S. military casualties. Turning to the evidence of record, the Veteran's service personnel records do not reflect that he engaged in any combat. See DD Form 214; Record of Assignments. Service treatment records did not reveal any mental health symptoms, complaints, treatment, or diagnoses of a psychiatric disorder. An initial diagnosis of PTSD is not found within the Veteran's records until 2014. See June 2014, VA Treatment Records. Nevertheless, consistent diagnoses for PTSD are reflected throughout the Veteran's record from that date forward. Based upon this medical evidence, the Veteran demonstrated the first element of service connection for PTSD by establishing a current diagnosis of the condition. 38 C.F.R. § 3.304(f); see Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection therefore turns upon whether there is credible supporting evidence that the claimed in-service stressor actually occurred. Id. Throughout the pendency of the Veteran's claim, extensive efforts have been undertaken to confirm the complained-of stressor in relation to the Veteran's diagnosed PTSD. Operational reports for the Veteran's assigned unit were reviewed, along with operational reports of the 25th Infantry Division for the given time-frame of the Veteran's overseas service. The NARA casualty database was also searched, as were the Official Military Activities Reports. There is no record of any such firefight or resulting casualties as reported by the Veteran. The Board recognizes the Veteran's assertions and the appellant's testimony and written statements; however, that evidence alone is insufficient to support a grant of service connection in this case. The Veteran's accounts of his overseas service indicate that he was, at times, a poor historian of his personal records. The most probative evidence of record are the documented reports and the Veteran's service personnel records which heavily weigh against the claim as they do not corroborate the occurrence of the claimed stressor. Given the above, service connection for PTSD must be denied as there is no corroboration of the Veteran's claimed stressor. (Continued on the next page) In reaching the foregoing conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.