Citation Nr: 9930538 Decision Date: 10/26/99 Archive Date: 10/29/99 DOCKET NO. 98-01 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for lung cancer to include the question of whether it was due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from February 1959 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 1997 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for lung cancer as a result of exposure to herbicides. The Board notes that in June 1999 the veteran withdrew his request for a hearing before a Member of the Board, and the hearing scheduled for July 1999 was subsequently canceled. FINDINGS OF FACT 1. . The veteran served in Thailand from July 1966 to June 1967; he did not serve in the Republic of Vietnam. 2. Lung cancer was first manifested many years after service. 3. There is no objective evidence that the veteran was exposed to Agent Orange during his service in Thailand. CONCLUSION OF LAW The veteran's lung cancer was not incurred or aggravated in service, may not be presumed to have been incurred in service, and was not incurred as a result of Agent Orange exposure in service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records do not show any complaints, clinical findings, or diagnosis of lung cancer. On a January 1970 separation physical examination, the veteran's lungs were clinically evaluated as normal. Service personnel records show that he served in Thailand from July 1966 to June 1967. He served with Co C, 538th EngrBn (Const) from July 1966 to March 1967 and then served with Hq Co, 809th EngrBn (Const) until June 1967. He had no service in the Republic of Vietnam. A VA medical center (VAMC) discharge summary dated in January 1995 showed a diagnosis of large cell carcinoma of the lung. VA treatment records dated from January 1995 to October 1995 showed that the veteran received treatment for carcinoma of the lung and other unrelated medical problems. By rating action in July 1996, the RO denied service connection for lung cancer due to Agent Orange exposure, finding that there was no indication that the veteran served in Vietnam. The RO noted that the veteran, therefore, did not meet the statutory requirements to establish service connection on a presumptive basis for his lung cancer. By letter dated in June 1997, the RO notified the veteran that he was previously denied service connection for lung cancer due to Agent Orange exposure in July 1996, and that in order to have the issue reconsidered (and reopened), he had to provide new and material evidence to show that his lung cancer was incurred or aggravated by his active military service. The RO also noted that his personnel records showed that he served in Thailand, and there was no indication that he served in the Republic of Vietnam. Received in June 1997 by the RO, was a statement from the veteran in which he claimed service connection for large cell carcinoma of the lung due to exposure to Agent Orange. The veteran reported that he was stationed in Thailand from July 8, 1966 to June 22, 1967 and they were building a highway through Thailand into Vietnam. He claimed that the right of way was sprayed with an herbicide agent (Agent Orange) several times during his period of service, in order to kill the jungle and control the vegetation on the right of way. He claimed they worked everyday in the jungle after it was sprayed, building the highway, and their compound was sprayed and fogged every day and night to control insects. He reported that he was in good health when he arrived in Thailand in July 1966 and started having health problems and problems with breathing and swallowing. He claimed that a doctor told him that sprayed herbicide will cause large cell carcinoma. In September 1997 the veteran submitted a statement, along with several documents. In his statement he claimed that he was stationed 65 miles south of Kharat, Thailand for six to eight months and he helped to build a road. He thought the road was named Highway 23. He claimed that after six to eight months he was promoted and stationed further south, and was still building the road. He reported that the vegetation on the right of way, when sprayed, would wilt and turn brown. The veteran also submitted a letter dated in September 1997 from the U.S. Army & Joint Services Environmental Support Group (ESG) (now called the U.S. Armed Services Center for Research of Unit Records) to the RO, in response to the veteran's representative request concerning his possible exposure to herbicides in Thailand. Along with the letter, ESG included documents showing that the Thailand Defoliation Test Program was conducted in Thailand from April 1963 through June 1966, to determine the effectiveness of aerial applications of herbicides, such as Purple and Orange, in the defoliation of jungle vegetation. The test program was carried out in a series of aerial spray tests on carefully defined test plots at the Royal Thai Army reservation in Pranburi, Thailand. The document also showed that Agent Orange was sprayed in Thailand in 1964 and 1965. Also enclosed with the letter were copies of VA Agent Orange Briefs and the Agent Orange Review. In July 1997 the National Personnel Record Center (NPRC) indicated that they were unable to confirm the veteran's use of Agent Orange during road construction. By rating action in October 1997, the RO denied service connection for lung cancer as a result of exposure to herbicides, essentially finding that the required service in Vietnam had not been shown, nor was there evidence of exposure to herbicides in any other period of service. The RO also noted that there was no basis in the available evidence of record to establish service connection for lung cancer, and noted that the lung cancer did not occur in service, nor was it aggravated or caused by service. In February 1998 the veteran testified at a hearing at the RO that he arrived in Thailand in July 1966 and first went to a base camp in "Kharat" for three to four days. He was then transferred approximately 65 to 70 miles south, into the mountains and jungles, where he was assigned to a unit as an equipment repairman. His unit was building a road through the jungle and mountains, and he claimed that the 150 foot right of way for the road was sprayed with herbicides. He claimed that during the eight or nine months he was with the unit, they built approximately 15 miles of the road, and herbicides were sprayed over two to three mile sections of the road. He was part of the crew that actually cleared the right of way and did the initial grading. He reported that he never saw the actual spraying, but did see helicopters go over with spray bars on. He testified that he worked in brown foliage areas. He was diagnosed with lung cancer in 1995, received radiation treatment, and his lung cancer was now in remission. After he spent approximately eight months building the road, he was transferred farther south to the 809th Engineer Battalion, Headquarters Company, and there was no exposure there. The veteran submitted several maps to the hearing officer, and reported that the maps showed that the spraying noted at Pranburi was remote from where the veteran was, and that his likelihood of exposure was slim. He did not know what type of helicopters were spraying the herbicides or where they came from. In a statement dated in June 1998 the veteran indicated that he was including unit history reports for C Company, 538th Eng. Bn., and noted that these records showed that they had trouble clearing the jungle during building of the road because it was very dense. He claimed that due to the amount of vegetation, they sprayed "defoliates", one of which was Agent Orange. He claimed he was exposed to this by working in the jungle, brushing up against the foliage, and drinking the water. The veteran submitted a letter dated in May 1998 from the U.S. Armed Services Center for Research of Unit Records (USASCRUR), to his representative, "concerning his PTSD claim". Enclosed with the letter was a 1965-1970 unit history and extracts from the Operational Reports of Lessons Learned submitted for time periods ending April 30, 1996 and October 31, 1996, by the 538th Engineer Battalion. In the letter the USASCRUR stated that the unit's mission included constructing base camps and Route 304. The area of Route 304's terrain was noted to have rugged hills, mountains, dense under brush, jungle type vegetation, and rice paddies, and that the unit's area of operation included Korat and Kahin Buri, Thailand. It was noted that the National Archives and Records Administration and the U.S. Army Military History Institute did not maintain unit records for the 134th Engr.Bn. It was also noted that Morning Reports, which could be used to verify daily personnel actions, could be ordered from the Director of the NPRC. A review of the unit history for the 538th Engineer Battalion in Thailand shows that from December 1965 to December 1968 a 140 kilometer road was constructed between Korat and Kahin Buri which traversed several types of challenging terrain, including rugged hills and mountains, with dense underbrush and jungle type vegetation, low lying rice paddy areas. The Operational Report of Lessons Learned showed that Company C was responsible for military road construction in a certain area, and the major tasks in that area included clearing and grubbing heavy jungle growth and control of steep grades as the road winds through the mountain. In June 1998, the veteran also submitted an April 1998 letter from J. P. Sutherland, Jr., D.O. Dr. Sutherland indicated that the veteran had a history of exposure to Agent Orange which would affect his lung disease associated with emphysema and chronic obstructive lung disease. Dr. Sutherland also reported that the veteran had a history of large cell carcinoma of the lungs which was a direct result of exposure to Agent Orange. Analysis A claimant for benefits under a law administered by the Secretary of the United States Department of Veteran Affairs (VA) shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's claim for service connection for lung cancer due to exposure to Agent Orange is considered to be a plausible claim and is therefore well grounded. The Board also notes that that all necessary evidentiary development has been undertaken by VA and the duty to assist has been complied with. Under applicable criteria, service connection will be granted for disability resulting from personal injury suffered or disease incurred in or aggravated during service. 38 U.S.C.A. § 1110, 1131. Where a veteran, who has served 90 days or more, manifests certain specified diseases to include cancer to a degree of 10 percent or more within one year of separation from service, that disease may be presumed to have been incurred during service, the absence of any evidence of that disease during service notwithstanding. 38 C.F.R. §§ 3.307, 3.309. The veteran contends that he has lung cancer as a result of his exposure to Agent Orange during his period of active service in Thailand. He asserts that he was exposed to Agent Orange in Thailand because he helped build a road through the jungle, and that Agent Orange was sprayed to clear the right of way for the road. The Board initially notes that the veteran's active duty included service in Thailand from July 1966 to June 1967. A review of the claims file reveals no evidence showing that the veteran served in the Republic of Vietnam, nor does he assert otherwise. The regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era and have a disease listed at 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999); see also McCartt v. West, 12 Vet. App. 164 (1999). The specified diseases include respiratory cancers, which shall have become manifest to a degree of 10 percent or more within 30 years, after the last date on which the veteran was exposed to a herbicide agent during active service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (1999). The Board notes, however, that the Agent Orange presumption (38 C.F.R. §§ 3.307 and 3.309) does not extend to alleged exposure outside of Vietnam. Thus, since the veteran did not serve in Vietnam, the Agent Orange presumption does not apply to the instant case. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). In that regard, the Board finds that the preponderance of the evidence is against the veteran's claim that Agent Orange exposure in Thailand led to the development of his lung cancer. Although he submitted evidence from a private physician, Dr. Sutherland, showing that his lung cancer resulted from Agent Orange exposure, it is significant that the physician's opinion is solely based on the veteran's subjective reports of exposure to Agent Orange. There is no evidence in the record confirming or corroborating the veteran's claimed exposure to Agent Orange in Thailand. A physician's opinion regarding the etiology of a disorder can be no better that the facts alleged by the veteran. Black v. Brown, 5 Vet. App. 178, 180 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not satisfy the competent medical evidence requirement set forth in Grottveit v. Brown, 5 Vet.App. 91, 93 (1995). Dolan v. Brown, 9 Vet.App. 358, 363 (1996). See also LeShore v. Brown, 8 Vet.App. 406, 409 (1995); Reonal v. Brown, 5 Vet.App. 458, 461 (1993). Thus, Dr. Sutherland's opinion which ascribes a causal relationship between the veteran's claimed service Agent Orange exposure and current lung cancer as a result thereof, is of no probative value. Of much more probative value is the information obtained from the ESG and USASCRUR regarding the veteran's alleged inservice exposure to Agent Orange. Specifically, these records show that Agent Orange was sprayed in Thailand up until one month before the veteran's arrival in country, and was sprayed in an area remote from the veteran's location. The unit histories obtained show that the veteran's unit did build a road, which involved clearing away dense jungle foliation, but there was no indication that Agent Orange was used during that process. In short, the preponderance of the evidence weighs against the veteran's claim that his lung cancer is etiologically related to exposure to Agent Orange. Absent evidence affirmatively showing that he was exposed to Agent Orange while serving in Thailand, or a legal presumption in the veteran's favor, there is no basis to grant service connection for lung cancer as being incurred during service or otherwise due to exposure to Agent Orange in Thailand. The Board has considered the doctrine of resolving doubt in the veteran's favor, but since the preponderance of the evidence is against the veteran's claim, that doctrine is not for application. 38 U.S.C.A.§ 5107. ORDER Entitlement to service connection for lung cancer, to include as being due to exposure to Agent Orange, is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals