Citation Nr: 1516681 Decision Date: 04/17/15 Archive Date: 04/24/15 DOCKET NO. 13-22 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for multiple myeloma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2014, the Veteran testified at a hearing with the undersigned Veterans Law Judge. FINDING OF FACT The Veteran was likely exposed to herbicides during his military service. CONCLUSION OF LAW The criteria for service connection for multiple myeloma have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including a malignant tumor, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection, there must be a competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition to the forgoing, the Board observes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain 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. The diseases associated with herbicide exposure for purposes of the presumption are specified by statute and regulation and include multiple myeloma. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom; Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997) (specific applicability in Agent Orange cases). Thus, presumption is not the sole method for showing causation. VA treatment records show that the Veteran has been diagnosed as suffering from multiple myeloma. The current disability criterion is satisfied. It is neither alleged nor shown that the Veteran's multiple myeloma originated in service or that such was present within the one-year period immediately following service separation. Rather, the Veteran alleges that his multiple myeloma is the result of his in-service herbicide exposure while he was serving on active duty in Okinawa, Japan, with the 3rd Marine, 9th Motors, 3rd Fort Service Support Group (FSSR), from February 1976 to February 1977 and while at Fort A.P. Hill in Virginia, from 1977 to 1979. The single question thus presented by the instant appeal is whether the Veteran was in fact exposed to toxic herbicide, including Agent Orange, while in service. The Board notes that the Veteran did not serve on active duty in Vietnam or Korea, such that he might be afforded a presumption of in-service herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran alleges that while stationed in Okinawa, barrels of dioxin were sent from Vietnam to Okinawa before being taken to Johnston Island. He related that his job as a truck driver in Okinawa included the duty of cleaning vehicles and equipment that were brought from Vietnam to Okinawa. He contends that he was exposed to dioxins while stationed in Okinawa. Specifically, he has stated that the vehicles and equipment he was required to clean in Okinawa, which were brought there from Vietnam, were covered with herbicides and dioxins, which required the use of diesel fuel to clean the vehicles and equipment. He described having a five-gallon bucket of diesel and washing trucks using his hand and a rag with two or three fellow service members. He also stated that he would spray and kill the weeds and grass around the Camp's perimeter and around other areas located throughout the Camp using diesel fuel. He further described that while he worked in the Motor Pool in Okinawa, he decontaminated and re-painted more than 500 pieces of equipment that were brought from Vietnam. The Veteran stated that he was not afforded masks, gloves, chemical suits, or any other protective gear when cleaning the vehicles and equipment. He also related that he had the task of removing and replacing the canvas from the seats of the vehicles because they were soiled. The Veteran further contends that he was exposed to herbicides contained within 55-gallon drums that were at Fort A.P. Hill in Virginia, from 1977 to 1979. He stated that he was frequently sent to Fort A.P. Hill to move containers from one warehouse to another and that some containers were observed to be leaking. The foregoing was set forth in various statements and sworn testimony by the Veteran. The Veteran has submitted memoranda from the U.S. Environmental Protection Agency regarding contaminants in the soil and groundwater at Fort A.P. Hill. A variety of other articles relating to the use of Agent Orange, herbicides, and dioxins on Okinawa, are also of record. Also submitted are various photos of one or more of the vehicles the Veteran similarly utilized in transporting barrels of herbicide in Okinawa. The Veteran's specific unit is not listed among those determined explicitly to have been exposed to herbicide agents. However, given the supporting documentation and statements provided by the Veteran, the Board determines that the evidence as to whether the Veteran was exposed to herbicides is at least in equipoise. This determination is limited to this specific Veteran, based on the facts presented. In view of this evidence, the Board shall resolve reasonable doubt in favor of the Veteran and find that he was exposed to herbicide agents. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, his multiple myeloma, which appears to have manifested to a degree of 10 percent or more at some time after service, is presumed to be connected to such exposure. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). As there is no affirmative evidence to the contrary, the Board concludes that service connection is warranted for multiple myeloma. See 38 C.F.R. § 3.307(d). ORDER Service connection for multiple myeloma is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs