Citation Nr: 21046990 Decision Date: 07/31/21 Archive Date: 07/31/21 DOCKET NO. 17-13 865 DATE: July 31, 2021 ORDER Entitlement to service connection for malignant thymoma, to include as due to herbicide agent exposure is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicides agents while serving in Vietnam. 2. The Veteran has malignant thymoma that is related to his in-service herbicide exposure during his active military service. CONCLUSION OF LAW Resolving reasonable doubt, the criteria for service connection for malignant thymoma, claimed as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision remanded the claim for additional development. In August 2020, the Veteran submitted a waiver of consideration by the agency of original jurisdiction (AOJ) in the first instance of any additional evidentiary submissions. Entitlement to service connection for malignant thymoma, to include as due to herbicide agent exposure. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Board observes that the Veteran served in the Republic of Vietnam. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a) (6) (iii), 3.313(a). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin's lymphoma; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e), 3.313, 3.318. Factual Background and Analysis After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a malignant thymoma disability as due to exposure to herbicides is warranted. The Veteran contends that he developed malignant thymoma as the result of herbicide agent exposure during his naval service in the Republic of Vietnam. VA has conceded his exposure to herbicide agents based on his service in the twelve nautical mile territorial sea of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc) (the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the twelve nautical mile territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008)). As noted above, malignant thymoma, status post excision is not listed diseases for which service connection may be presumed due to an association with exposure to herbicide agents pursuant to 38 C.F.R. § 3.309(e). Thus, a grant of service connection for malignant thymoma based on a presumptive basis is not warranted. However, the Board must also consider whether the Veteran's malignant thymoma was directly caused by herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran's medical record demonstrates that he has been diagnosed with malignant thymoma. The Board notes that there are conflicting opinions as to whether the Veteran's current malignant thymoma disability is related to his service to include conceded herbicide exposure. The Veteran underwent a VA examination in June 2020 and the examiner opined that it was less likely than not that the Veteran's malignant thymoma disability was related to his exposure to Agent Orange. The examiner noted that there was scant literature regarding the etiology of thymoma and that the etiology was most likely genetic. In contrast, a private physician in an August 2020 correspondence noted that the Veteran had no other risk factors that may have directly precipitated his myasthenia gravis which resulted in thymoma. The physician opined that the Veteran's myasthenia gravis which resulted in thymoma was directly precipitated by is in-service herbicide exposure as Agent Orange was a known risk factor for myasthenia gravis. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). As reflected above, the August 2020 VA examiner specifically noted that the Veteran had no other risk factors besides Agent Orange for the development of his myasthenia gravis. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current thymoma disability that is a result of his in-service herbicide exposure. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. As noted above, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl; supra. As a result, while service connection due to conceded herbicide exposure is not warranted on a presumptive basis, in light of the fact that the Veteran had conceded herbicide exposure and that there are detailed opinions of record explaining why the Veteran's malignant thymoma should be considered related to his herbicide exposure, the Board finds that service connection is warranted on a direct basis as contemplated by Combee. Although the Veteran's disability was not formally diagnosed in service, positive evidence has been submitted showing that the Veteran's malignant thymoma disability was related to service. In sum, for the reasons and bases discussed above, all reasonable doubt is resolved in favor of the Veteran, and service connection for a malignant thymoma disability due to exposure to herbicides, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.