Citation Nr: 23012284 Decision Date: 02/28/23 Archive Date: 02/28/23 DOCKET NO. 16-57 402 DATE: February 28, 2023 ORDER Entitlement to service connection for colon cancer is denied. Entitlement to service connection for liver cancer is denied. Entitlement to service connection for lung cancer is denied. Entitlement to service connection for basal cell carcinoma of the left forearm and squamous cell carcinoma of the face, nose, and jawline, is granted. FINDINGS OF FACT 1. Colon cancer was not manifest in service, within one year of service, and is not otherwise caused by service. 2. Liver cancer was not manifest in service, within one year of service, and is not otherwise caused by service. 3. Lung cancer was not manifest in service, within one year of service, and is not otherwise caused by service. 4. Affording the Veteran and appellant the benefit of the doubt, his basal cell carcinoma of the left arm and squamous cell carcinomas of the face, nose, and jawline were the result of his in-service sun exposure in Thailand. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for colon cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for liver cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for basal cell carcinoma of the left forearm and squamous cell carcinoma of the face, nose, and jawline are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from December 1963 to December 1983. The Veteran died in January 2016. The appellant is his surviving spouse. In June 2016, the RO allowed for her substitution in the Veteran's case that was on appeal, and she was notified at that time. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for colon cancer 2. Entitlement to service connection for liver cancer 3. Entitlement to service connection for lung cancer 4. Entitlement to service connection for skin cancer, to include on the arms, face, nose, and jawline Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Certain diseases, to include malignant tumors may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with a malignant tumor within one year of service the above provision is not applicable. Alternatively, a "veteran who, during active military, naval, or air 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 during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, respiratory cancers (including the lungs). 38 C.F.R. § 3.309(e). As of 2022, pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), Thailand is included on the list of locations with presumed exposure for veterans who served there during the Vietnam era. Prior to 2022, exposure to herbicide agents was not presumed for service in Thailand, but it could be shown by the evidence on a facts-found basis. 38 C.F.R. § 3.307(a)(6). The Veteran's personnel files document service at Korat Royal Thai Air Force Base, Thailand, from December 1967 to March 1969 and at Takhli Royal Thai Air Force Base, Thailand, from December 1968 to March 1969 during a period when the runway at the Korat facility was closed. As such, exposure to herbicide agents is presumed. In this case, however, while the Veteran has presumed exposure to herbicide agents during his service in Thailand, he does not have any of the disabilities listed in 38 C.F.R. § 3.309(e) as presumed to be due to that in-service herbicide exposure. The Veteran did have diagnosed lung cancer, but as discussed below, multiple medical professionals have found that the cancer found in the lungs was colon cancer that metastasized to the lungs, rather than lung cancer itself. As colon cancer is not on the list of disease presumed due to in-service herbicide exposure, service connection for colon cancer that metastasized to the liver and lungs cannot be granted based on the above presumptions. In the alternative, 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). The Veteran, and now appellant, argue that the Veteran developed colon, liver, lung, and skin cancers due to in-service exposure to Agent Orange or other herbicide agents while serving in Thailand. The Veteran and appellant also have argued that the skin cancer was due to in-service sun exposure in Thailand. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of any of the claimed disabilities. The Veteran and appellant have not argued that he sought treatment for any associated problems during service or that the problems had their onset during service. In May 2014, the Veteran had actinic keratoses over sun-exposed areas of skin. In July 2014, the Veteran had suspected basal cell carcinoma on his left inner arm and that diagnosis subsequently was confirmed. A February 2015 private treatment record indicated that the Veteran was being treated for Stage IV colon cancer that had metastasized to the liver and left lung. He had been diagnosed in August 2014, with treatment including a left colon segmental resection in August 2014. As to the lung cancer, the record noted that originally the etiology had been unknown, but that, "Based on the PET-CT scan done [in September 2014] and the response and decrease in size of the left lung lesion which was FDG avid and seen on his follow up PET-CT scan done [in November 2014] is likely cancer from a colon primary." The Veteran also had unrelated Stage III skin cancer (squamous cell carcinoma) of the head and neck, including the right mandible. The Veteran in the past had skin cancer (squamous cell carcinoma) on the left arm that had been resected and was stable. The Veteran had a family history of cancer. Treatment records also document basal cell carcinoma on the nose. In support of his claim, the Veteran submitted a VA internet article discussing Agent Orange exposure at Thailand military bases between February 1961 and May 1975. The articles stated, in relevant part, "To receive benefits for diseases associated with herbicide exposure, these Veterans must show on a factual basis that they were exposed to herbicides during their service as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." A December 2015 statement from a private physician stated that the Veteran, "has a history of multiple skin cancers, including basal cell [and] squamous cell carcinomas. He continues to be evaluated [and] treated [] for pre skin cancers and skin cancers he is growing. It is very reasonable to believe that the patient's time in the military (and he sun exposure he received) directly contributed to the skin cancers he has developed." A May 2016 VA medical opinion also concluded that the Veteran colon cancer metastasized in the left lung and that it was not separate lung cancer. In her November 2016 substantive appeal, the appellant stated that the Veteran had part of his nose removed and also was treated for cancer on the face, neck, arms, and nose. The Veteran told the appellant that he had worked on the flight line in Thailand where it was very hot, and he incurred many sunburns. The Veteran did not seek treatment during service because he viewed seeing a doctor for his issues as a weakness or a way to get out of work. The appellant reported that a private doctor, "states that his time in the service and sun exposure caused basal [and] squamous cell carcinoma." As to the Veteran's skin claim, the sole medical opinion of record links the Veteran's basal and squamous cell carcinomas on the exposed areas of his body to sun exposure in service. The Veteran and appellant have reported how the Veteran was exposed to significant sun while serving in Thailand that resulted in numerous sun burns. In light of the foregoing and in the absence of any evidence to the contrary, the Board will afford the claimants the benefit of the doubt and concludes that entitlement to service connection for basal cell carcinoma of the left forearm and squamous cell carcinoma of the face, nose, and jawline is granted. The Board has considered whether the colon, liver, and lung claims could be granted on some basis other than the claimed exposure to herbicides but concludes that the claimed disabilities clearly had their onset many years after service and there is no competent evidence to otherwise suggest that any of them were related to service. The Board acknowledges the belief of the Veteran and appellant that the Veteran's colon cancer that metastasized to the liver and lungs was due to his in-service exposure to herbicide agents and recognizes that they are competent to report symptoms related to the Veteran's claimed disabilities; however, there is not a continuity of symptoms from service and the Veteran and appellant are not otherwise competent to link these disabilities to his active service based on their lack of demonstrated medical expertise and the complexity of attributing the disabilities to exposure to herbicides many decades prior to the onset of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the Veteran is not competent to attribute his colon cancer that metastasized to his liver and lungs to his active service, to include exposure to herbicides. The colon cancer is not among the diseases presumed to be caused by in-service exposure to herbicide agents. There is no evidence of a chronic disability during service or for many years after service. There is no medical evidence linking the colon cancer to service. In light of the evidence, the Board concludes that the evidence of record persuasively weighs against finding that the colon cancer that metastasized to the liver and lungs was incurred in service or otherwise was caused by service, to include exposure to herbicide agents. The colon, liver, and lung claims are denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.