Citation Nr: 1306416 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-37 056A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service-connection for non-Hodgkin's lymphoma. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1962 to September 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2011, the Board remanded the claim for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). While on appeal in a rating decision in May 2012 the RO granted service connection for major depressive disorder. In light of the Board's decision and the revision to 38 C.F.R. § 3.309(e), the record raises the claim of service connection for coronary artery disease, which is referred to the VA Regional Office for appropriate action. FINDINGS OF FACT 1. During the Vietnam era the Veteran served at the Royal Thai Air Force Base in U-Tapao, Thailand, where his duties placed him near the perimeter of the base, where it is presumed that he was exposed to Agent Orange. 2. Non-Hodgkin's lymphoma is presumptively associated with exposure to Agent Orange. CONCLUSION OF LAW The criteria for service connection for non-Hodgkin's lymphoma have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection is granted, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDINGS AND CONCLUSION Evidence The Veteran served in the U.S. Air Force from January 1962 to September 1982. The service personnel records show that from January 1970 to January 1971 the Veteran was stationed at U-Tapao Royal Thai Air Base, Thailand, where he was shift supervisor on B-52s, and he supervised aircraft maintenance, preflight, launch, and recovery of aircraft, which included flightline duties. In 1974, he was stationed at Korat Royal Thai Air Base, Thailand, where he was a crew chief for loading munitions on F-4 aircraft. After service, private records show that in April 2005 the diagnosis was non-Hodgkin's lymphoma following a biopsy of a right neck mass in September 2004. Thereafter VA records show treatment of non-Hodgkin's lymphoma. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Veterans who served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, are considered Vietnam-era Veterans and are presumed to have been exposed to certain herbicide agents, including a herbicide commonly referred to as Agent Orange, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(ii). With respect to Vietnam-era Veterans, there is a presumption not only of exposure to Agent Orange there is also a presumption of service connection for certain diseases, including non-Hodgkin's lymphoma, manifested to at least 10 percent disabling. 38 C.F.R. § 3.307(a)(6)(ii) and 38 C.F.R. § 3.309(e). In the case of a Veteran, who served in Thailand during the Vietnam-era, VA recognizes that Agent Orange was used on the perimeter of military bases in Thailand, including at the U-Tapao and Korat Royal Thai Air Force Bases. And VA has extend the presumption of exposure to Agent Orange and the presumption of service connection for non-Hodgkin's lymphoma to a Vietnam-era Veteran, who served in Thailand at the designated bases and whose duties placed a Veteran on or near the perimeter of the base, where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. q. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d at 1377. When the competent lay or medical evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. Merits of the Claim for Service Connection Private medical records document the diagnosis of non-Hodgkin's lymphoma in 2005 and VA records show that the Veteran was treated with chemotherapy from 2005 to 2010, which is at least 10 percent disabling under Diagnostic Code 7715, which is evidence of current disability. The service personnel records show that Veteran was at the U-Tapao air base in 1970 and 1971 and at the Korat air base in 1974, which establishes that the Veteran is a Vietnam-era Veteran and who served at the designated air bases in Thailand. The Veteran's performance evaluation report in February 1971 shows that the Veteran's duties at U-Tapao included preflight, launch and recovery of B-52s. As the Veteran's duties were on the flightline of B-52s, which was near the runway and as the runway was near the base perimeter, this places the Veteran near the perimeter of the base and the Veteran is presumed to have been exposed Agent Orange. As the Veteran is presumed to have been exposed to Agent Orange, service connection is presumed for non-Hodgkin's lymphoma as due to exposure to Agent Orange. 38 C.F.R. § 3.309(e); VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. q. ORDER Service connection for non-Hodgkin's lymphoma is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs