Citation Nr: 0402781 Decision Date: 01/30/04 Archive Date: 02/05/04 DOCKET NO. 03-16 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for lymphoma, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Andrew E. Betourney, Counsel INTRODUCTION The veteran served on active duty from September 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the veteran's claim for service connection for lymphoma. The veteran filed a timely appeal to this adverse determination. REMAND The veteran is seeking service connection for lymphoma, which was first diagnosed in May 2002. He claims that while he was stationed at Naha Air Base in Okinawa Japan, he was temporarily assigned to a U.S. Air Base at Tan Son Nhut in Vietnam from September 1965 to January 1966, at which time he was exposed to Agent Orange. He asserts that "my diagnosis of CLL [chronic lymphocytic leukemia] is directly related to this exposure." In analyzing this claim, the Board initially observes that, under the provisions of 38 C.F.R. § 3.309(e) (2003), if a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease 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 that the rebuttable presumption provisions of § 3.307(d) are also satisfied. These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. Chloracne, porphyria cutanea tarda, and subacute peripheral neuropathy must be manifest within one year after the last exposure to a herbicide. 38 C.F.R. § 3.307(a)(6). The Board notes that 38 U.S.C. § 1116(a)(2)(F), as added by § 201(c) of the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-113, 115 Stat. 976 (2001), eliminates the requirement that respiratory cancers manifest within 30 years following service in the Republic of Vietnam. For the purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e). Further, according to 38 C.F.R. § 3.307(a)(6)(iii), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the "Vietnam Era"). A review of the veteran's service personnel records which have been obtained by the RO fails to show any evidence that the veteran was stationed in Vietnam from September 1965 to January 1966. The only personnel report of record consists of the veteran's AF Form 7, Airman Military Record, which indicates that the veteran was stationed at Naha Air Base in Okinawa, Japan from February 1965 to August 1966, which encompasses the time period in question. However, the Board finds that while the veteran's AF Form 7 was the only service personnel records needed at the time of the RO's initial request for service personnel records, the veteran's recent assertions of temporary duty in Vietnam require that the RO request additional service personnel records which may be available, such as temporary duty assignment orders. In addition, the veteran and his representative have asserted that additional types of personnel records may exist which shows that the veteran was temporarily assigned to an air base in Vietnam while stationed in Okinawa, such as pay records and travel vouchers. Finally, the Board notes that Morning Reports for the veteran's unit, the 51st Field Maintenance Squadron (FMS), may confirm the veteran's transfer from the Naha Air Base in Okinawa to the Tan Son Nhut Air Base in Vietnam in September 1965 and his return to the Naha Air Base in January 1966. Therefore, in order to assist the veteran in developing his claim, the Board finds that a remand in this case is required with instructions that the RO request additional service personnel records from the National Personnel Records Center (NPRC) which could serve to confirm the veteran's presence in Vietnam from September 1965 to January 1966. Therefore, the case is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC for the following development: 1. The RO should contact the NPRC and request any and all documentation which could serve to confirm the veteran's presence in the Republic of Vietnam from September 1965 to January 1966, to potentially include temporary duty (TDY) assignment orders, pay stubs which reflect special pay status, such as combat duty pay, travel vouchers, and Morning Reports for the 51st Field Maintenance Squadron (FMS) for the time period in question. 2. After the above development has been completed, and after giving the appellant the full opportunity to supplement the record if desired, the RO should review the case and assure that all indicated actions are complete. The RO should next readjudicate the issue of the veteran's entitlement to service connection for lymphoma, to include as due to exposure to Agent Orange. If any determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. _________________________________________________ S. L. KENNEDY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).