Citation Nr: 1640215 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 10-30 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma, claimed as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned Veterans Law Judge in a videoconference from the RO in November 2010. A transcript of his testimony is of record. In February 2014 the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development, which has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the file shows the Veteran recently submitted a substantive appeal in regard to the issues of entitlement to service connection for hypertension, diabetes mellitus type 2 and cancer of the kidney, all claimed as due to exposure to Agent Orange (on appeal from a rating decision in July 2013). The Veteran requested a videoconference hearing before the Board on these issues and has been placed on the waiting list for such a hearing. When the appellate record is transferred to the Board, the Veteran and his representative will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). The Board declines to take further action on these issues until the required notifications have been sent; this delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The issues of entitlement to service connection for cancer of the kidney, hypertension and diabetes mellitus type 2 will be the subject of a later Board decision as appropriate. FINDINGS OF FACT 1. The Veteran is not shown to have been exposed to Agent Orange during service. 2. Non-Hodgkin's lymphoma was not incurred in service, nor may it be presumed to have been so incurred, and it is not otherwise the result of service. CONCLUSION OF LAW The requirements for service connection for non-Hodgkin's lymphoma have not been met. 38 U.S.C.A. §§ 1101, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). The RO sent the Veteran a VCAA-compliant notice letter in July 2009, and the Veteran had ample opportunity to respond prior to the rating decision on appeal. Concerning the duty to assist, the record also reflects VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Service treatment records, service personnel records and post-service treatment records have been obtained and associated with the file. The Veteran has not identified any existing medical evidence that should be obtained before the claims are adjudicated, nor is the Board aware of any such outstanding evidence. The Veteran was also afforded a hearing before the Board, during which he presented oral argument in support of his claim for service connection. The Veteran has not been afforded a VA examination in support of his claim for service connection. However, there is no evidence of lymphoma in service or for many years thereafter, and there is no competent evidence suggesting the current condition is related to service. Accordingly, a VA examination and opinion is not required. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In its February 2014 remand the Board directed the AOJ to obtain the Veteran's Social Security Administration (SSA) disability record and outstanding VA treatment records, and to ask the Veteran to resubmit certain documents that he had mentioned in a previous Statement in Support of Claim. These actions were accomplished. The Board finds there has been substantial compliance with the remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required). Based on review of the record, the Board finds there is no indication that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied. Evidence and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). A veteran is entitled to a presumption of service connection for non-Hodgkin's lymphoma if he was exposed to herbicides during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Exposure to herbicides is conceded if a Veteran served in the Republic of Vietnam or the waters offshore during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). Exposure to herbicides may also be conceded if a veteran served in the demilitarized zone (DMZ) of the Republic of Korea from April 1968 through July 1969. The Veteran in this case does not assert that he served in the Republic of Vietnam or in the Republic of Korea. Service treatment records (STRs) show no indication of lymphoma. The Veteran had a VA general medical examination in August 1982. The examination report reflects no evidence of lymphoma. A June 2009 VA otolaryngology note states the Veteran developed a neck mass 3-4 months earlier that eventually proved to be symptoms of lymphoma. Per the Veteran's VA active problems list, lymphoma was formally diagnosed in May 2009. A Social Security Administration (SSA) disability determination granted the Veteran disability benefits for mantle cell lymphoma effective from August 2009. Thus, the Veteran is shown to have been diagnosed with lymphoma in 2009, and the first element of service connection - medical evidence of a disability - is met. As noted above, SSA granted disability for lymphoma, but the medical records associated with the SSA file are silent in regard to the etiology of the disease. The Veteran asserts on appeal that his lymphoma is due to exposure to tactical herbicides (Agent Orange) in service. He did not serve in Vietnam or Korea, but he asserts having been exposed to Agent Orange within the United States in two different ways. First, he asserts that during basic training at Fort Leonard Wood, Missouri, he and other trainees were required to perform maintenance on vehicles that came back from Vietnam in contaminated condition. Second, he asserts that he performed temporary duties at Eglin Air Force Base (AFB), Florida, an installation at which Agent Orange is known to have been tested. In regard to cleaning contaminated vehicles, Messrs. GLR and Mr. GDR submitted "buddy statements" in September 2009 stating they observed the Veteran to have worked on Vietnam-era vehicles during service. Mr. GLR also stated that after the Veteran was separated from service he continued to work in Fort Knox as a civilian employee, during which he worked on armored vehicles for display in the Patton Museum and on vehicles that were returned from the Persian Gulf War. Cleaning and servicing vehicles is consistent with the Veteran's military occupational specialty (MOS). The Board finds at this point that the Veteran's account of having cleaned and serviced equipment from Vietnam is credible. However, VA does not concede exposure to Agent Orange resulting from servicing aircraft or equipment that was returned from Vietnam. Accordingly, having cleaned equipment that arguably had been returned from Vietnam does not establish exposure to Agent Orange for the purpose of establishing entitlement to presumptive service connection. In regard to performing duty at Eglin AFB, the file contains a certificate signed by the Commanding Officer, 194th Armored Brigade, attesting the Veteran participated in Exercise Bold Eagle at Eglin AFB in October 1981. Also, Mr. DML submitted a "buddy statement" in January 2010 asserting from personal observation that the Veteran was a member of the advanced party to Eglin AFB in October 1981, and that his duties took him all over the base. The Board finds at this point that the Veteran is shown to have been in Eglin AFB in October 1981 and turns to the question of whether such service demonstrates exposure to Agent Orange. In support of his assertion that herbicides were used at Eglin AFB the Veteran submitted a November 2007 article from the Florida Recon Report, a newsletter published by the Florida State Council of the Vietnam Veterans of America. The article, titled "Air Force Admits Agent Orange Spraying in Florida 1962-70," asserts the Air Force is shown to have sprayed and stored Agent Orange at Eglin Air Force Base, Florida, during the period indicated in the title. The Board notes that if the dates cited are accepted as accurate, spraying of herbicides at Eglin AFB would have terminated 11 years prior to the Veteran's presence at that installation. In July 2009 the RO submitted a request to the Service Department using the Personnel Information Exchange System (PIES) for research to determine if the Veteran had been exposed to herbicides during service. The file contains a response from the Service Department through the Defense Personnel Records Information Retrieval System (DPRIS) in December 2009 stating that Department of Defense (DoD) records show herbicides were tested Eglin AFB by spraying over a two-mile area during the period 1962 to 1970, but there is no record of Agent Orange having been sprayed, transported, tested or used at Eglin AFB thereafter. Accordingly the Service Department could not confirm the Veteran having been exposed to Agent Orange during exercises at Eglin AFB during the period October-November 1981. In May 2014 the RO issued a Formal Finding of Unavailability of Information to verify exposure to herbicides at Eglin AFB. The RO noted that DoD currently acknowledges Agent Orange testing at Eglin AFB as early as November 1952 and as late as April 1978. The memorandum notes that granting service connection for Agent Orange is predicated on being present while the chemical was in use, but the Veteran in this case was present in Eglin AFB more than three years after application of Agent Orange ceased; accordingly, exposure to Agent Orange was not conceded. The memorandum also noted there are no studies showing exposure to Agent Orange on an after-the-fact, secondary basis. In his July 2010 substantive appeal the Veteran asserted he has a cluster of diseases that are associated with veterans who served in the Republic of Vietnam. The Veteran believes this is much more than mere coincidence and demonstrates that he was exposed to herbicides in service. In November 2010 the Veteran testified before the Board that his treating hematologist suggested to him that the lymphoma was caused by exposure to herbicides. The Veteran described two places in service where he believes such exposure occurred. First, during basic training at Fort Leonard Wood, he and other trainees had to scrub down vehicles that returned from Vietnam. Second, while assigned to Fort Knox he participated in field exercises in Eglin AFB during which he roamed throughout the base mapping locations for his unit to occupy on arrival. The Veteran stated he has non-Hodgkin's lymphoma, diabetes mellitus, hypertension and glaucoma, all of which he asserted are associated with exposure to herbicides. The Veteran's VA treatment record contains the following note from his hematologist: "[The Veteran] should be eligible without question for Agent Orange related benefits as his mantle cell lymphoma is unquestionably a B-cell non-Hodgkin's lymphoma and thus approved by VA as related to Agent Orange exposure presuming his service record confirms duty in Vietnam." The file contains a July 2014 administrative note from the Veteran's attending psychiatrist, who stated the Veteran approached him requesting a medical statement in support of his claim. The psychiatrist stated that as the Veteran's treating psychiatrist any statement he made would be biased in favor or the Veteran and would be based on limited information. The psychiatrist stated that although he cannot render an unbiased opinion letter the Veteran gives a plausible explanation for his exposure to Agent Orange at Eglin AFB, and the psychiatrist certainly supports the Veteran's pursuit of his claim. The Veteran recently submitted a scientific article in support of his claim that was originally published in 2004. The article, "Long overlooked historical information on Agent Orange and TCDD following massive applications of 2,4,5-T containing herbicides, Eglin Air Force Base, Florida," states that during the period 1962-1970 the Air Development Test Center sprayed tactical herbicides on a small area (less than three square kilometers) at Eglin AFB. Of note, the spraying at Eglin AFB was conducted on a cleared area, and each hectare at Eglin AFB received at least 1,300 times more TCDD than a hectare sprayed with Agent Orange in Vietnam. Subsequently, environmental testing of the soil and other ecosystems was performed on a larger area (more than eight square kilometers) during the period 1969 through 1984, which showed that 99 percent of the TCDD likely never persisted beyond the day of application. No long-term adverse health effects were documented in these studies despite the massive quantities of herbicides and TCDD that were applied to the site. On review of the evidence above the Board finds the Veteran is shown to have performed duties at Eglin AFB during the period October-November 1981, but finds such service did not likely result in exposure to herbicides. First, the spraying area at Eglin AFB was a very small area (variously characterized as a two-mile area or an area of less than three square kilometers); per open-source internet research Eglin AFB covers an area of 463,128 acres (1,874.2 square kilometers, or 723.6 square miles), which makes it mathematically unlikely the Veteran's duties took him to the area where Agent Orange had been sprayed. Second, the spraying of herbicides at Eglin AFB demonstrably ceased several years before the Veteran served at that installation; given that the Agent Orange dissipated quickly (per the article submitted by the Veteran), the Board concludes there was no significant residual health hazard by the time the Veteran served at Eglin AFB. Taken together, the small size of the sprayed area and the rapid dissipation of Agent Orange after spraying cause the Board to find the Veteran is not shown to have been exposed to Agent Orange at Eglin AFB for the purpose of establishing entitlement to presumptive service connection. The Board acknowledges the opinions of the Veteran's hematologist and psychiatrist. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). In this case, the question of whether the Veteran was actually exposed to Agent Orange during his service is not a medical question, but rather a question of fact to be determined by the adjudicator. The hematologist stated the obvious point that the Veteran would be entitled to service connection for lymphoma if exposure to herbicides is shown; such a causal relationship is not in dispute. The psychiatrist essentially endorsed the Veteran as being a credible and sincere witness which is also not in dispute. Neither the hematologist nor the psychiatrist is shown to have knowledge of essential factual considerations such as the history of Agent Orange testing at Eglin AFB. The Board accordingly finds the opinions of the VA hematologist and psychiatrist to be not probative regarding the threshold question of exposure to herbicides during service. The Board also acknowledges the Veteran's sincere belief that his lymphoma is related to herbicide exposure in service. As demonstrated by a letter in February 2012 the Veteran's spouse shares this belief. However, the lay evidence offered by the Veteran does not establish he was present where any herbicides were currently being used, stored or transported. The Veteran has argued that he is shown to have been exposed to herbicides because he has a "cluster" of diseases associated with such exposure, but some of the diseases cited by the Veteran (such as hypertension and glaucoma) are not presumptively associated with herbicide exposure; also, the Veteran as a layperson is not considered to be competent to assert an opinion as to the etiology of disease(s) such as lymphoma that became manifest many years after separation from service; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board concludes the lay evidence offered by the Veteran is not sufficient to show entitlement to service connection. In sum, based on the evidence and analysis above the Board finds the Veteran is not shown to have been exposed to herbicides in service. The Board also finds that non-Hodgkin's lymphoma was not incurred in service, nor may it be presumed to have been so incurred, and it is not otherwise the result of service. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the evidence preponderates against the claim and the benefit-of-the-doubt rule does not apply. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for non-Hodgkin's lymphoma is denied. ____________________________________________ KATHLEEN K. GALLAGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs