Citation Nr: 22051540 Decision Date: 09/10/22 Archive Date: 09/10/22 DOCKET NO. 19-25 386 DATE: September 10, 2022 ORDER Entitlement to service connection for non-Hodgkin's lymphoma to include as due to exposure to burn pits and other toxins, is granted. FINDING OF FACT The Veteran's non-Hodgkin's lymphoma is presumed to be etiologically related to his conceded in-service exposure to burn pits and other toxins while serving in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for non-Hodgkin's lymphoma, as due to conceded exposure to burn pits and other toxins, have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309; Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1990 to December 1992, to include service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs (VA) regional office. In June 2022, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of hearing transcript has been associated with the claims file. 1. Entitlement to service connection for non-Hodgkin's lymphoma to include as due to exposure to burn pit and other toxins, is granted. The Veteran seeks service connection for non-Hodgkin's lymphoma. Establishing service connection on a "direct" basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has provided an alternative theory of entitlement to service connection for his non-Hodgkin's lymphoma, which is that his non-Hodgkin's lymphoma, is due to exposure to burn pit and other toxins in service. Specifically, the Veteran asserts that he was exposed to burn pits and burring oilwells during service in Southwest Asia. See June 2022 Board Videoconference Hearing. The law provides that, if a veteran was exposed to particulate matter, to include as the result of burn pits, in Southwest Asia theater, Afghanistan, Syria, and Djibouti, certain listed diseases shall be service connected if the requirements of 38 C.F.R. § 3.320(a)(4) 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. § 38 C.F.R. § 3.320(a)(3) are also satisfied. Section § 3.320 (a)(4)(i) of Title 38 of the C.F.R. requires any period of active service in Southwest Asia theater of operations as defined in § 3.317(e)(2) during the Persian Gulf War period. Southwest Asia theater during the Persian Gulf War includes operations service in Iraq, Kuwait, and Saudi Arabia from August 2, 1990, through date to be prescribed by Presidential proclamation or law. 38 C.F.R. §§ 3.2(i), 3.317(e)(2). 38 C.F.R. 3.320(a)(4)(ii) requires any period of service of active military, naval, or air service in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Persian Gulf War as defined in § 3.2(i). Additionally, Congress recently passed the Honoring our PACT Act of 2022 (PACT Act), which, inter alia, includes Section § 406 "Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2022" which adds Bahrain, Oman, Qatar, Somalia, and United Arab Emirates to the list of countries to be included in the Persian Gulf War period. Section § 406 also includes lymphoma cancer of any type to the list of conditions subject to service connection on a presumptive basis under the list of presumptive impairments for Veterans exposed to burn pits and other toxins. Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). Here, the record reveals a current diagnosis of non-Hodgkin's lymphoma. See January 2019 VA Examination Disability Benefits Questionnaire (DBQ). Additionally, as discussed above, the Veteran served in Southwest Asia from August 2, 1990, as such, exposure to burn pits and other toxins is conceded. The Board acknowledges that, under the PACT Act, the addition of lymphoma cancer of any type to the list of conditions for which presumptive service connection is warranted due to exposure to burn pits and other toxins does not become effective until October 1, 2024. However, the presumption is effective as of August 10, 2022, the date the PACT Act was signed into law, for Veterans who are: terminally ill; homeless; under extreme financial hardship; are more than 85 years old; or are capable of demonstrating other sufficient cause. Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). Here, the record reveals that treatment of the Veteran's non-Hodgkin's lymphoma has resulted in arthralgias and pain in his feet which impact his ability to work. Furthermore, while being treated with Vincristine, the Veteran developed painful neuropathy, as such that treatment was discontinued. Also, the January 2019 VA examiner noted possible "metastasis to the right adrenal." See January 2019 VA Examination DBQ. He was diagnosed with Stage IV DLBCL, and he has debilitating fatigue, whereas he is unable to work a full day. Finally, the Veteran informed VA that he has stress from job loss and he has financial concerns. As such, the Board finds that the criteria to warrant an effective date prior to October 1, 2024, under the PACT Act have been met. As the evidence indicates that the Veteran has a diagnosis of non-Hodgkin's lymphoma, and his exposure to burn pits and other toxins is conceded, entitlement to service connection for non-Hodgkin's lymphoma, on a presumptive basis as a result of exposure to burn pits and other toxins is warranted. See 38 C.F.R. §§ 3.307, 3.309; Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). As such, the claim is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.