Citation Nr: 0215618 Decision Date: 11/04/02 Archive Date: 11/14/02 DOCKET NO. 93-19 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from October 1965 to September 1967. Initially, the Board of Veterans' Appeals (Board) notes that the action requested by the Board's previous remands in this matter has been accomplished to the extent possible, and that this case is now ready for appellate review. FINDING OF FACT The veteran was exposed to a herbicide agent during active service and his non-Hodgkin's lymphoma must therefore be presumed to have been incurred during that service. CONCLUSION OF LAW The veteran's non-Hodgkin's lymphoma was incurred during active military service. 38 U.S.C.A. §§ 1110, 1116 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.309(e) (2001). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that this matter has already been developed pursuant to the guidelines established in the recently enacted Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A (West Supp. 2002) (VCAA). In this regard, the record reflects numerous efforts on the part of the regional office (RO) to verify the veteran's exposure to herbicide agents while stationed at Fort Knox, Kentucky in 1965. In addition, the Board finds that the veteran has continually known of what steps the RO was and had been taking to develop his claim and what steps he could take. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, the Board also observes that since the Board has decided to grant service connection for non-Hodgkin's lymphoma, any lack of notice or development under the VCAA could not be considered prejudicial to the veteran. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the 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. 38 C.F.R. § 3.303(b) (2001). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence 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) (2001), shall be presumed to have been exposed during such service to a 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) (2001). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, even though there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). Under the United States Court of Appeals for the Federal Circuit's holding in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), the Department of Veterans Affairs (VA) is required to consider, in addition to the statutory presumptions referable to herbicide exposure (including Agent Orange) diseases contained in § 3.309(e), whether the veteran would be entitled to service connection on a direct basis under 38 U.S.C.A. § 1110. Here, the veteran's service medical records are silent with respect to complaints or treatment for non-Hodgkin's lymphoma and the record does not contain a medical opinion linking the veteran's non-Hodgkin's lymphoma to service. However, it has consistently been the veteran's contention that he was exposed to a herbicide agent while stationed a Fort Knox, Kentucky in 1965, and that this exposure entitles him to presumptive service connection for his non-Hodgkin's lymphoma. With respect to the veteran's contention, the Board first notes that service medical records reflect that the veteran received medical treatment at Fort Knox, Kentucky in November 1965. Personnel records reflect that the veteran underwent basic and advanced training at Fort Knox, Kentucky, during the period of October 12, 1965 to March 20, 1966. The veteran did not have service in Vietnam. Private medical records for the period of August 1987 to June 1990 reflect multiple diagnoses of non-Hodgkin's lymphoma and treatment for this disorder. The record contains a June 1991 handbook providing information to physician's in recognizing chemically-induced diseases that Vietnam veterans and civilians who served in the Vietnam Conflict were experiencing. Information received in November 1996 from the Environmental Support Group (ESG) of the Department of the Army (subsequently redesignated as the U.S. Armed Services Center for Research of Unit Records (USASCRUR)), provided various pertinent facts and studies about Agent Orange and related concerns. Initially, Agent Orange was defined as a mixture of chemicals containing equal amounts of the two active ingredients, 2,4-D and 2,4,5-T. It was further noted that one of the chemicals (2,4,5-T) in Agent Orange contained minute traces of 2,3,7,8-tetrachlorodibenzo-p-dioxin (also known as TCDD or dioxin). It was also indicated that this chemical had caused a variety of illnesses in laboratory animals. Finally, it was noted that the National Academy of Sciences (NAS) had indicated in a 1993 report about Agent Orange and non-Hodgkin's lymphoma that the evidence was sufficient to conclude that there was a positive association between exposure to herbicides (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) and non- Hodgkin's lymphoma. In a statement received in February 1997, the veteran contended that he might have been exposed to Agent Orange at several points throughout his military service, including at some point during basic training at Fort Knox, Kentucky in 1965. In response to a June 2002 letter from the RO seeking to confirm whether a herbicide agent was used a Fort Knox, Kentucky in conjunction with chemical, biological and radiological training and/or for building and grounds maintenance from October to December 1965, a July 2002 letter from the Chief of the Environmental Management Division, Directorate of Base Operations Support, Fort Knox, Kentucky, reflects that Post Directorate of Public Works, Natural Resource Branch and Pest Control Branch did use pesticides (herbicides, insecticides) throughout the installation. He further indicated that areas treated with insecticides included dining facilities, barracks, living quarters, and administration buildings, and that herbicides were used for weed control on ranges, around administration buildings, and on golf courses. He noted that "[s]ome of the pesticides used then were DDT; chlordane; 2,4,5 T; diazinon; and malathion." There were no records that demonstrated the frequency or level of use. The Board has carefully reviewed the evidence of record and first notes that recent information provided by the Chief of the Environmental Management Division at Fort Knox, Kentucky, documents the use of the chemical 2,4,5-T at that location at the time the veteran was stationed there in 1965. Moreover, the evidence provided by ESG (redesignated subsequently as USASCRUR) documents that this chemical was one of the components of Agent Orange that contained dioxin and was found in 1993 by NAS to be positively associated with the development of non-Hodgkin's lymphoma. The Board further notes that under 38 C.F.R. § 3.307(c)(6) (2001), "herbicide agents" are identified as 2,3-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. Thus, while the Board recognizes that the veteran did not have service in Vietnam, giving the veteran the benefit of the doubt, the Board does find that he was likely exposed to a herbicide agent for which presumptive service connection attaches under 38 C.F.R. § 3.309(e) (2001). Accordingly, since the veteran's non-Hodgkin's lymphoma is listed under 38 C.F.R. § 3.309(e) as a disease associated with exposure to certain herbicide agents, and such exposure probably occurred, the Board finds that service connection for the veteran's non-Hodgkin's lymphoma is warranted. ORDER The claim for service connection for non-Hodgkin's lymphoma is granted. John E. Ormond, Jr. Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.