Citation Nr: 9916522 Decision Date: 06/16/99 Archive Date: 06/21/99 DOCKET NO. 96-31 706A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for immunoblastic lymphoma as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jean Steadman, Associate Counsel INTRODUCTION The veteran had active service from October 1954 to August 1958 and from October 1961 to July 1981. This appeal to the Board of Veterans' Appeals (the Board) is from an adverse rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the case in October 1997 for additional evidentiary development. Those actions are now complete and this case is properly before the Bord for adjudication upon the merits. FINDINGS OF FACT 1. The veteran served on active duty during the Vietnam era from 1969 to 1970, during which time he was stationed at Nakhon Panom, Thailand. 2. The veteran's commendations include the Vietnam Service Medal, and Republic of Vietnam Campaign Medal, and there is satisfactory evidence that he had active military service along the Thailand/Vietnam border during the Vietnam era. 3. Credible evidence sustains a reasonable probability that the veteran was exposed to Agent Orange while in Thailand. 4. The veteran's recent immunoblastic lymphoma must be reasonably attributed to his inservice Agent Orange exposure. CONCLUSION OF LAW Immunoblastic lymphoma is presumed to have been incurred during active service as secondary to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Criteria Service connection may be established for a disability incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Additional provisions are to the effect that service connection may be presumed in the case of a veteran who served continuously for 90 days or more during a period of war, if a certain disease, i.e., cancer, was present to a compensable degree within a year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1998). For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), 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 C.F.R. § 3.307(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1998). For the purpose of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i) (1998). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (1998). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the veteran's service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[p]roof of direct service connection...entails proof that exposure during service caused the malady that appears many years later"); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) ("even though a veteran may not have had a particular condition diagnosed in service, or for many years afterwards, service connection can still be established"); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Provisions of 38 C.F.R. § 3.307(6)(iii) further state that such a veteran who served in the Republic of Vietnam during the Vietnam era and has such a (listed) disease shall be presumed to have been exposed to the herbicides. However, presumptive provisions are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. See Horowitz v. Brown, 5 Vet. App. 217, 222 (1993). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313 It remains the duty of the Board as the fact finder to determine credibility of the testimony and other lay evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Lay persons are not competent to render testimony concerning medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, service connection may be established through competent lay evidence, not medical records alone. Horowitz, op. cit. In such a case, as in other situations dealing with special provisions of 38 U.S.C.A. § 1154, an individual may well provide data with regard to incidents which took place, etc. although a lay witness is not capable of offering evidence requiring medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board has the duty to assess the credibility and weight to be given the evidence. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), reconsideration denied per curiam, 1 Vet. App. 406 (1991)). It has been determined that a well-grounded claim requires three elements: (1) medical evidence of a current disability; (2) lay or medical evidence of a disease or injury in service; and (3) medical evidence of a link between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498 (1995). In a case that coincidentally also provides significant supportive data regarding claims with regard to Agent Orange and the legislative and other machinations associated therewith, the United States Court of Appeals for Veterans Claims (Court) recently found that plausible medical evidence of the existence of a current presumptively service-connected disease with an open-ended presumption period is sufficient to present a well-grounded service connection claim as to that disease. The case also holds that the presence of the disease would carry with it the presumption of nexus to service as well. See Brock v. Brown, 10 Vet. App. 155, 162 (1996). Factual Background It appears the veteran's service medical records from his first tour of duty have not been located after several attempts by the RO. The veteran's service medical records reflect that he was clinically evaluated as normal in August 1961. He denied any history of tumors, growths, cysts, or cancer. In January 1963, the veteran was treated for a systemic viral disease. During a periodic May 1969 examination, the veteran was clinically evaluated as normal. During a May 1974 periodic examination, the examiner noted a soft subcutaneous node in the right shoulder area. In October 1976, a lipoma was excised from the right shoulder. In April 1977, the veteran reported a history of tumors, growths, cysts, or cancer during his physical examination. The examiner noted that the veteran was referring to his right shoulder lipoma. September 1980 chest x-rays reveal nodular density overlying the right seventh posterior rib. During his September 1980 retirement examination, the examiner noted a scar on the right shoulder region and a sebaceous cyst present at the right shoulder region or lipoma. February 1981 x-rays chest revealed two nodular densities overlying the lung fields. The veteran's VA DD form 214 reflects that the veteran received the Good Conduct Medal; Good Conduct Medal with Silver Oak Leaf Cluster; Longevity Service Award Ribbon with four Bronze Oak Leaf Clusters; National Defense Service Medal; Small Arms Expert Marksmanship Ribbon; Meritorious Service Medal; NCO Professional Military Education Graduate Ribbon; Republic of Vietnam Campaign Medal; Vietnam Service Medal; AF Outstanding Unit Award with two Bronze Oak Leaf Clusters; and the AF Commendation Medal with one Bronze Oak Leaf Cluster. The veteran served on foreign soil for three years eight months and seventeen days. In August 1981, the veteran was awarded service connection for excision, cyst right shoulder, bursitis, left shoulder, and right lateral epicondylitis. In February 1996, the veteran filed his original claim for service connection for right lung mass, lymphoma, large cell with immunoblastic [sic]. He stated that he was stationed in Thailand/Vietnam in 1969-1970, four miles from the Ho Chi Minh Trail. Included with his claim is a disability statement wherein he set forth that he suffered from immunoblastic lymphoma, Stage IIA. His right hilar mass was found in April 1993 and was stable for two years. In November 1995 an open thoracotomy revealed immunoblastic lymphoma. Also submitted in support of his claim are VA outpatient treatment records from November 1995 to January 1996 which reveal treatment for immunoblastic lymphoma Stage IIA. In November 1995, a right open lung biopsy of a right lung mass revealed large cell immunoblastic lymphoma. Thereafter, the veteran underwent chemotherapy. The RO requested the veteran's service personnel records. The service personnel records reflect that the veteran was stationed in Nakhon Phanom, Thailand from August 1969 to April 1970. Additional outpatient treatment records from October 1995 to January 1996 reveal continued treatment for immunoblastic lymphoma. In May 1996, the RO denied entitlement to service connection for immunoblastic lymphoma. The RO noted that while the veteran was clearly stationed in Thailand, he was never stationed in Vietnam. The RO cited 38 C.F.R. § 3.307(a)(6)(iii) and determined that the veteran did not meet the requirements of service in Vietnam. The veteran filed a timely notice of disagreement (NOD) in June 1996. He stated that while he acknowledged that he was not stationed in Vietnam; he was stationed in Thailand, four miles from the Ho Chi Minh Trail. He stated that he saw Agent Orange being dropped from the helicopters above and witnessed the vegetation die. He reported that he was stationed at a gymnasium which was located next to the jungle areas that were sprayed with Agent Orange. The veteran perfected his appeal in August 1996. He reiterated his contentions that Agent Orange was dropped within 100 yards of his workstation. He stated that his base at Nakhon Phamon was attacked by the Vietcong because it was located less than 60 miles from Vietnam. Thereafter, this case was forwarded to the Board for review. In an October 1997 Remand, the Board requested further evidentiary development. The Board noted that it appeared that additional service medical records were not associated with the claims file and another attempt to secure such records was necessary. In response to the RO's request for further evidence of Agent Orange exposure, the veteran submitted duplicate copies of service personnel records. He reported that on at least one occasion, his base was under attack by the North Vietnamese and Agent Orange was sprayed overhead. Thereafter, he and his fellow soldiers picked up bodies and parts of bodies and brought them to the base. In June 1998, the veteran underwent VA examination for lymphatic disorders. He reiterated his history of service in Thailand and exposure to Agent Orange. The veteran detailed his post-service medical history including his treatment for immunoblastic lymphoma. The veteran complained of shortness of breath, fatigue, and depression. The examiner commented that the right hilar lymph node was enlarging according to the veteran. The veteran stated that he was no longer able to work or perform household chores. He reported recurrence of pneumonia. The examiner noted a history of right hilum chemotherapy treatment from November 1997 to March 1998. A computed axial tomography (CT) scan revealed right hilar adenopathy and parenchymal distortion and sub-centimeter module in the lateral segment of the right middle lobe most likely representing round atelectasis, however a neoplastic process could not be completely excluded. The examiner's diagnoses included immunoblastic lymphoma, right hilum, post-chemotherapy. The examiner referred the claims file to the oncology department for review and an opinion regarding the etiology. In July 1998, the veteran was reexamined. After examination, the examiner's assessment was NHL, immunoblastic Stage II, achieved CR with standard surgery, question of possible recurrence in right middle lobe by CT appearance but not defective relapse. The examiner commented that although the etiology of immunoblastic lymphoma was unknown in most cases, the veteran's lymphoma was at least as likely as not related to his reported exposure to Agent Orange. Analysis Initially, the Board has determined that the appellant's claim is well grounded pursuant to 38 U.S.C.A. § 5107 in that his claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to that claim. After reviewing the record, the Board is satisfied that all relevant, available evidence is on file and the statutory duty to assist the appellant in the development of evidence pertinent to his claim has been met. 38 U.S.C.A. § 5107. In a case such as this, there are several kinds of pertinent service records. Admittedly, available service medical records are somewhat wanting since they do not reflect and treatment for dioxin exposure, etc. It is entirely possible that additional service medical records are somewhere available. However, given the pertinent regulations, there would seem to be no special benefit to be gained by delaying the claim further in a search for additional but unnecessary records. Also of record are some other service documents, which confirm assignment units, duties, locations, etc., identified elsewhere in this decision. In this case, these are more important to the disposition of the case. In that regard, it is not known if additional pertinent records may be readily if at all available. To the extent that the veteran is able to provide pertinent information, he has clearly done so. An attempt was made to officially verify those factors. As was noted above, the applicable regulations presume that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam era was exposed to certain herbicide agents if he has one of the diseases listed in 38 C.F.R. § 3.309(e), unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). In this case, the Board notes that the veteran's record of service reflects his receipt of commendations regarding service in Vietnam. The fact that there is no service department documentation confirming Vietnam service does not constitute affirmative evidence that the veteran was not exposed to Agent Orange, and there was confirmation of his service for one year in Thailand near the border with the Republic of Vietnam. In order, however, to fill in the resultant gaps, there are certain factors which the Board must address with regard to credibility. If found credible, these could be adequate for an equitable disposition of this claim without further development. Accordingly, in concert with that judgment and consistent with providing the veteran with all due process and the benefit of the result of an expeditious and equitable decision, the Board finds that the duty to assist the veteran in obtaining evidence has been fulfilled in this case pursuant to pertinent regulations. In this case, the veteran clearly has had respiratory cancer, which is one of those diseases incorporated in the special presumptions with regard to disabilities as a result of exposure to Agent Orange. Thus, the only significant issue to be resolved is whether he was in fact exposed to dioxins in service. The evidence in this regard may not be independently verifiable or overwhelming, but the aggregate data are entirely consistent therewith. In that regard, the Board finds that the veteran's explanations of his exposure quite credible and historical map evidence verifies that Nakhon Phamon is on the Thailand/Vietnam territorial border. He has provided a comprehensive description of the activities through which he was exposed to concentrated dioxins, while readily acknowledging that he was never stationed within the Vietnam border. These asserted facts mesh well with those more readily recognizable things for which there is no need for verification. They also make good common sense when placed next to the known problems such as the ongoing rain in the Far East during that portion of the year which made the requirement for non-soluble defoliants a reality in the first place. All are entirely believable and consistent with the other known information. The service department has verified that the veteran was indeed where he said he was, at a time when military build-up from a support standpoint was considerable, and at a time when warnings were not necessarily given, as he stated, since the hazards were not fully understood. He can scarcely be faulted for the non-verifiability of specific practices on the Thailand border. His assertions in that regard are both reasonable and justifiable and appear both sound and factually accurate, all of which raises a certain premise from which conclusions may be reasonably drawn. It is exactly such situations in which the Court has mandated that the Board make judgments with regard to ultimate and relative credibility, which in this case, the Board finds in the affirmative. Consequently, based on the above, and giving the benefit of the doubt, the Board finds that there is satisfactory evidence that the veteran had active service sufficiently proximate to if not in the Republic of Vietnam during the Vietnam era to have sustained Agent Orange exposure and that he is entitled to application of the presumptions relating to such service with respect to exposure to Agent Orange under 38 C.F.R. §§ 3.307, 3.309. The Board again notes that the veteran has a respiratory cancer, one of the diseases for which presumptive service connection is permitted based on exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Thus, having concluded that the veteran was exposed to herbicides while assigned to Nakhon Phamon from 1969 to 1970, not coincidentally concurrent with other entirely reasonable circumstances enumerated by the veteran, the Board finds that a doubt is thus raised which must be resolved in his favor, and in so doing, that service connection must be granted for immunoblastic lymphoma as being the result of Agent Orange exposure under pertinent exceptions to the regulations. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Service connection for immunoblastic lymphoma as secondary to Agent Orange exposure is granted. RONALD R. BOSCH Member, Board of Veterans' Appeals