Citation Nr: 1544175 Decision Date: 10/15/15 Archive Date: 10/21/15 DOCKET NO. 10-45 797 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for Hodgkin's disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active military service from June 1970 to June 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision. The Veteran presented sworn testimony in support of his appeal during a July 2014 videoconference hearing before the undersigned Veterans Law Judge. In September 2014, the Board remanded the appeal for further evidentiary and procedural development. Such development having been accomplished, the matter has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam, and his base is Thailand is not recognized as one where herbicides were used. 2. Direct exposure to herbicides has not been verified. 3. The Veteran does not have Hodgkin's disease as a result of his service. CONCLUSION OF LAW Service connection for Hodgkin's disease is not warranted. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for Hodgkin's disease which he believes is the result of herbicide exposure during service. The Veteran testified at a Board hearing in July 2014 that he served as a C-130 pilot with a Marine Air Squadron and was temporarily stationed in Nam Phong, Thailand in 1973, where he believes he was exposed to Agent Orange. The Veteran's representative acknowledged that the Veteran is free of Hodgkin's disease as he had fortunately beaten the disease in 1983. They request a noncompensable rating. Duties to notify and assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial RO decision by letter of May 2009 to the Veteran that informed him of his own and VA's duty for obtaining evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The letter also provided notice of information and evidence needed to establish disability ratings and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In terms of the duty to notify, case law requires some discussion of the July 2014 Board hearing. The Veterans Law Judge presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. In this case, the issue on appeal was identified, and the nature of the Veteran's discontent and the chain of events leading to the appeal was clarified. Relevant information was elicited from the Veteran by the undersigned. Sources of evidence relevant in this regard were discussed during this process. As such, these actions fulfilled the duties under 38 C.F.R. § 3.103(c)(2). VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains relevant service treatment and personnel records, VA treatment records, and private medical treatment records. Upon remand, the Board ordered that further historical research be undertaken to verify the Veteran's assertion that he was exposed to herbicides in Thailand. The RO contacted the Marine Corps Historical Center and the National Archives, as well as the Air Force Historical Research Agency in the effort to verify any herbicide exposure. All three agencies were unable to provide any evidence corroborating the Veteran's assertion. To the contrary, an archivist at the Air Force Historical Research Agency provided the information that the Secretary of Defense had ordered all Agent Orange use in Thailand to cease in December 1970. The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims decided herein and no further assistance to develop evidence is required. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his electronic VA files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Analysis In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including Hodgkin's disease, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. In this case the Veteran has specifically denied having ever setting foot in the Republic of Vietnam. The Veteran was diagnosed with and successfully treated for Hodgkin's disease in 1983, a number of years after separating from active service. There is no suggestion that Hodgkin's disease began in service, within a year of service, or is otherwise the result of service, except as secondary to claimed herbicide exposure. Therefore, the Veteran's claim hinges on whether he is considered to be presumptively exposed to herbicides such as Agent Orange while in service, or, if not, whether such exposure has been factually shown. To this end, the Veteran does not have any specific (factual) evidence that he was exposed to any herbicides. That is, he has not conveyed any direct knowledge of exposure. Rather, the Veteran argues that because he was in Thailand, and because herbicides were used in Thailand, he should be presumed to have been exposed. He also argues that the planes he was flying in Thailand and Cambodia were contaminated with herbicides. In his April 2009 claim, and subsequent writings, the Veteran asserted that he was exposed to Agent Orange and other herbicides while stationed in Thailand from June-November 1973. He added that he was a C-130 pilot who flew for two week detachments during this period, and he indicated that the C-130s that he flew had been exposed to Agent Orange while flying into Vietnam. The Veteran has also asserted that it had been conceded that the base he was stationed on had herbicides stored at it. The Veteran's service personnel records reflect that he was assigned to the Marine Aerial Refueler Transport Squadron 152, which was part of the First Marine Aircraft Wing of Marine Aircraft Group 36. His Squadron was stationed in Okinawa, Japan, but he served two or three two-week assignments at Nam Phong. Herbicide exposure may be shown for certain service in Thailand, as VA has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. When herbicide related claims from veterans with Thailand service are received, VA is instructed to evaluate the treatment and personnel records to determine whether a veteran's service activities involved duty on or near the perimeter of the military base where that Veteran was stationed. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a U.S. Air Force veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. In this case, the Veteran served as a Marine pilot, and flew C-130 transport planes in and out of the Royal Thai Air Force Base at Nam Phong. Therefore, his particular base has not been recognized as one of the Thai bases where herbicides were used. He testified during the hearing that he served two or three two-week assignments at Nam Phong. These planes were primarily involved with refueling the F-4 plans which were involved in bombing in Cambodia. His credible hearing testimony is supported by the personnel records contained in his military file. The Board notes that VA has recently promulgated an interim final rule to expand the presumption based on herbicide exposure to cover individuals who performed service in the Air Force and had regular and repeated contact with C-123 aircraft which were used to spray herbicide agents, such as Agent Orange, during the Vietnam era. However, this rule applies to the C-123 aircraft exclusively; the Veteran has consistently alleged that he flew the C-130 aircraft, which is a much larger aircraft designed for carrying large cargo loads. Thus, this new rule is not applicable in this instance. Although the Veteran has contended that his C-130 aircraft was contaminated by herbicides, this assertion is not borne out by any objective evidence of record. His aircraft was a refueling tanker, designed for carrying airplane fuel and re-fueling the fighter aircraft in mid-flight. There is no indication that the aircraft he was flying in Thailand were ever used for the transport of herbicides. As described above, extensive research was conducted in the attempt to verify the Veteran's claim that he must have been exposed to herbicides in Thailand. The VA was unable to do so, however. In particular, the notation from an archivist at the Air Force Historical Research Agency to the effect that the Secretary of Defense had ordered all Agent Orange use in Thailand to cease in December 1970, which was nearly three years prior to the Veteran's stay in Thailand, was particularly convincing. Thus, even if the Veteran had spent time in the perimeter area, which is not established, it would have been nearly three years after the most recent potential spraying. As such, there is no presumption of herbicide exposure or actual proof of exposure. The Veteran is therefore not entitled to presumptive service connection for on the basis of herbicide exposure. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. However, even when a Veteran is found to not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In this case, however, the Veteran's claim for service connection is entirely predicated on the theory that exposure to herbicides caused his Hodgkin's disease. He has not identified any other in-service event that could possibly be related to his Hodgkin's disease. Review of the service treatment records shows that he did not suffer from any associated symptoms while on active duty service. There is no indication in his post-service medical records that Hodgkin's disease could be directly related to service in a manner separate from the claimed Agent Orange exposure. Without an in-service occurrence or aggravation of Hodgkin's disease, his claim cannot succeed. In support of his claim, the Veteran and his representative have submitted a letter from the Marine Corps Air Transport Association which noted that a former Marine pilot had died of a soft cell carcinoma, and has pointed to other veterans who they claim are similarly situated, without service on the ground in Vietnam and VA had reportedly determined that their planes had been contaminated with Agent Orange. However, the specifics of that case were not detailed in the excerpt, and each appeal is based on the facts of the individual Veteran's case. As such, the outcome of any one decision is not binding on the Board. The Board notes that VA decisions, by the ROs and by the Board, are nonprecedential in nature. Each case presented to the Board must be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1303. This is what the Board has done in this case. In this case, the facts do not support the Veteran's claim, as the preponderance of the evidence is against his claim for service connection. In summary, the Veteran did not have the requisite service in or around Vietnam or in an area identified by the Department of Defense as one in which herbicides were located and thus herbicide exposure is not conceded. Additionally, the Veteran's particular exposure to herbicides in Thailand has not been verified. Therefore service connection for Hodgkin's disease cannot be established by using the presumption. Likewise, direct service connection is not available for the Veteran for Hodgkin's disease because the evidence does not indicate any direct relationship to service outside of his own lay statements linking the disease to herbicide exposure. The preponderance of the evidence is against his claim for service connection and the appeal must be denied. Continued on next page ORDER Service connection for Hodgkin's disease is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs