Citation Nr: 1327841 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 13-09 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for chronic B-cell lymphocytic leukemia (CLL), claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from March 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The evidence is in equipoise regarding whether the Veteran had service in the Republic of Vietnam. 2. The Veteran is currently diagnosed with CLL. CONCLUSION OF LAW The criteria for service connection for CLL have been met. 38 U.S.C.A. §§ 1110, 1116, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to service connection for CLL, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veteran contends that his current CLL is the result of exposure to herbicides during active duty. In various written statements, he asserts that he is entitled to presumptive service connection for his CLL based upon his travel through Da Nang incurred during his separation from service. The law provides that "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." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including CLL 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. Section 3.307(d)(6) provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Preliminarily, the Board observes that VA treatment records from February 2010 reflect a diagnosis of CLL. As such, the Board finds the Veteran has established a current disability for the purpose of service connection. Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, CLL is enumerated by 38 C.F.R. § 3.309(e) as a disease presumptively associated with herbicide exposure. With regard to in-service exposure to herbicides, service personnel records indicate that the Veteran was assigned to attack squadron 146 for a continuous tour of duty at sea for two years, beginning in December 1970. Specifically, the Naval personnel diary indicates that he was attached to carrier wing group 9, which included the USS Constellation (a "blue water" ship), and was ordered to be transferred to Cubi Point (located in Subic Bay) on February 27, 1972. The Veteran asserts that during his scheduled separation in 1972, he departed the USS Constellation, which was conducting operations in the Gulf of Tonkin, and flew through Da Nang on his way to Lemoore, CA via Subic Bay in the Philippines. The Veteran has submitted several written statements, alleging that he flew aboard an A6E strike fighter en route to Da Nang, spent one night in the transit barracks there, and then departed for Subic Bay. While in Da Nang, the Veteran described a mortar attack and stated that he was told about the deaths of two sailors, who were staying in the barracks, just two weeks prior. He also submitted a "buddy statement" from D.M., his brother-in-law, who served with the Veteran aboard the USS Constellation. D.M. asserts that the night before the Veteran was scheduled for separation he and the Veteran discussed the Veteran's departure which would carry him through Da Nang, Subic Bay, and on to California. Once both men were back home in Kansas, they reportedly discussed the Veteran's trip in more detail, including his flight aboard an A6 attack jet and his stay in Da Nang. Both the Veteran and D.M. recall that his separation occurred in early March, 1972. The USS Constellation deck logs for February 27, 1972 show that a number of strike fighters were launched that day. However, none of these entries list the passengers or destinations, or specify the type of strike fighter. According to the National Archives and Heritage Command, it was not standard practice to list destination, crew, passengers, or cargo of these flights in the deck logs. There appears to be no records from the transit barracks in Da Nang. Additionally, no evidence is of record indicating when the Veteran was in Subic Bay or how he arrived there. Furthermore, a review of the Vietnam Veterans Memorial Wall website lists no ground deaths due to hostilities in Da Nang between December 1, 1971 and February 28, 1972, although there were recorded deaths from helicopter and fighter losses. Lastly, the first statement submitted by the Veteran in May 2010 indicated that he spent several nights in Da Nang before he flew to Subic Bay. All statements since then have alleged spending only one night in Da Nang. Upon review, the Board finds the evidence is in equipoise with regard to the question of whether the Veteran set foot in Vietnam, and entitled to the presumption of exposure to herbicides for the purpose of establishing entitlement to service connection for CLL. Personnel records indicate that the Veteran was serving aboard the USS Constellation which was operating in the Gulf of Tonkin at the time. The USS Constellation did in fact utilize A6E strike fighters which were two seater planes. The Veteran has consistently stated that he flew through Da Nang on his way back to California and his statements are supported by D.M.'s "buddy statement". The Veteran's separation orders indicate that he was scheduled to fly through Subic Bay. The fact that there is no official record indicating that the Veteran was aboard an A6E en route to Da Nang in the deck logs is not dispositive as that type of information was not generally recorded in the deck logs. The Veteran's numerous statements are consistent and credible and he is competent to report the occurrence of observable events. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Aside from the lack of confirmation of the deaths of two sailors in Da Nang two weeks before the Veteran arrived, there is no evidence of record that contradicts the Veteran's statements, thus the Board finds them to be probative. Therefore, resolving the benefit of the doubt in favor of the Veteran, CLL is presumed to have been incurred in service as a result of exposure to herbicides, and as such, service connection is warranted. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309(e); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for CLL is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs