Citation Nr: 1638976 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 10-40 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for cancer of the neck, to include as due to herbicide exposure. 3. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 4. Entitlement to service connection for bladder cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to March 1968 with additional service in the New York National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The case was remanded in May 2015 and has been returned for review by the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Veteran was exposed to herbicides during his active military service while stationed at Fort Drum. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's diabetes mellitus, type II results from his exposure to herbicides during active service. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran's cancer of the neck results from his exposure to herbicides during active service. 4. Resolving reasonable doubt in favor of the Veteran, the Veteran's prostate cancer results from his exposure to herbicides during active service. 5. Resolving reasonable doubt in favor of the Veteran, the Veteran's bladder cancer results from his exposure to herbicides during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange, have been met. 38 U.S.C.A. §§ 101(24), 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.307 (2015). 2. The criteria for service connection for cancer of the neck, to include as due to exposure to Agent Orange, have been met. 38 U.S.C.A. §§ 101(24), 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.307 (2015). 3. The criteria for service connection for prostate cancer, to include as due to exposure to Agent Orange, have been met. 38 U.S.C.A. §§ 101(24), 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.307 (2015). 4. The criteria for service connection for bladder cancer, to include as due to exposure to Agent Orange, have been met. 38 U.S.C.A. §§ 101(24), 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.307 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he was exposed to herbicides, including Agent Orange while serving at Fort Drum, New York. Specifically the Veteran has stated that there is evidence that herbicides were aerially sprayed over Fort Drum in 1959 and that while the Veteran was not stationed there during that time, he still was exposed because herbicides, in particular dioxins, have a lifespan that can be more than 100 years if it was leached into the soil. The Veteran also provided a statement in support from a fellow soldier that noted that herbicides were sprayed everywhere at Fort Drum and that certain areas had to be closed down due to Agent Orange contamination. A June 2010 formal finding found that there was a lack of information required to corroborate herbicide exposure. Although VA made certain efforts to corroborate the Veteran's exposure to herbicides, it never contacted the command at Fort Drum, and did not retrieve any medical records, storage records, or soil analyses related to the use of herbicides at that military facility. The Board has no reason to doubt the competence and credibility of the Veteran's statements, and those of his former comrade-in-arms. Such lay statements must be considered by VA examiners in formulating their medical opinions; if they do not, their medical exams are inadequate. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) and Dalton v. Nicholson, 21 Vet. App. 23 (2007). In another Board decision based on similar facts to the present case, the Board discussed the issue of herbicides and dioxins at Fort Drum. See Bd. Vet. App. 1602097 (January 19, 2016). The Board acknowledges the long-standing rule that prior Board decisions are non-precedential; however, VA regulations do permit consideration of other Board decisions based upon similar facts: Although the Board strives for consistency in issuing its Board decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and applicable law. 38 C.F.R. § 20.1303 (2015) (emphasis added). In that case, the Veteran submitted a December 2013 opinion from an orthopedic surgeon. The examiner, referencing the World Health Organization Fact Sheet #225, indicated that dioxin 2,3,7, 8-tetrachlorodibenzo-para-dioxin (TCDD) was present in some batches of the herbicide Agent Orange used as a defoliant during the Vietnam War. TCDD concentrated in tissues and body cells which had high levels of fat. It was noted that more than 90 percent of human exposure to dioxin was through the food supply but direct exposure also occurred. It was also likely that other toxic substances or dioxin-like PCBs were present as a consequence of Agent Orange exposure. In addition, in that case the Veteran has submitted an article entitled "Yale scientist tells Congress Agent Orange research is flawed, exposure more widespread than reported." This article reflects the congressional testimony of a Yale School of Nursing Research Scientist who referenced a Canadian scientist led soil sampling that found high levels of dioxin concentrations at former military bases presumably many years after use of Agent Orange. The documentary evidence of record establishes that, in 1959, 13 drums of Agent Orange were sprayed over 4 square miles of Fort Drum. The area selected for the defoliant was a target area for explosive ordnance. The central issue in this case concerns whether the Veteran's presence at Fort Drum 5 years after this spraying involved an actual herbicide exposure. The Board has had the opportunity to conduct legal research for other cases involving alleged herbicide exposure at Fort Drum. The Board has found particularly pertinent information in the case of Malinowski v. Gibson, No. 13-0016, WL 2768851 (June 19, 2014), which involved the case of another Veteran who was stationed at Fort Drum 1974. In pertinent part, this non-precedential Memorandum Decision cited the following evidence which had been presented in support of the claim: According to a July 1981 reported prepared by the Chemical Systems Laboratory at the Aberdeen Proving Ground, chemicals found in Agent Orange were discovered at Fort Drum in five-gallon metal cans stored in an "an unheated wooden frame building with a wooden floor." R. at 198. This rustic facility did "not meet present day requirements for storage of pesticides." R. at 226. Another building was undergoing renovations so that it could be used to "properly store" herbicides and other pesticides. R. at 198. The report also reveals that the following occurred at Fort Drum: (1) in 1961 Dow Chemical Company "tested an experimental defoliant"; (2) in the 1950s a "large quantity of herbicide ... was sprayed from a helicopter over a site in the main impact area"; (3) from 1969 to 1978, herbicides were "used to control vegetation along fences and ... used to control brush along [two roads] in the main impact area"; and (4) from the 1950s through the early 1970s herbicides were used "on range impact areas ... to improve the line of vision from observation points to target impact areas." Id. In February 1984, an official at the U.S. Army Toxic and Hazardous Materials Agency wrote that an "exploratory survey at [Fort Drum] has been designed to determine whether or not site specific contaminants are migrating or have the potential to migrate beyond the installation's boundaries." R. at 70. Raw data for the survey was to be generated by testing groundwater, surface water, sediment, and soil for "the presence of chemical contamination," the official wrote. Id. The data would then "be used to assess any environmental or health hazard caused by existing or potential contamination [and] additional work or corrective actions may be warranted." Id. The official stated that samples collected for the survey would be tested for the presence of chemicals associated with Agent Orange because "this particular herbicide was used on the range impact areas to improve the line of vision from observation points to target impact areas ... during the 1960s through the early 1970s." Id. The Board notes that it may take judicial notice of evidence not subject to reasonable dispute - particularly if favorable to the Veteran. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991). The evidence cited in the Malinowski case raises significant doubt regarding whether herbicides were stored and used at Fort Drum after 1959. The July 1981 report prepared by the Chemical Systems Laboratory at the Aberdeen Proving Ground actually found five-gallon Agent Orange barrels improperly stored in a wooden structure. This report also discusses that, in 1961, the Dow Chemical Company "tested an experimental defoliant" and that "from the 1950s through the early 1970s herbicides were used "on range impact areas ... to improve the line of vision from observation points to target impact areas." As noted by the Court in Malinowski, the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency, investigating whether Agent Orange sprayed onto vegetation at Fort Drum in the 1960s and 1970s still may have been present in the surrounding environment, "strongly suggest[ed] that experts, at least in 1984, believed that Agent Orange may remain extant and hazardous a decade or more after it was applied." Notably, the Malinowski Court also noted that a June 2004 Board decision had conceded that a Veteran was exposed to herbicides at Fort Drum in 1962 by relying on the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency. This Board decision, under Docket Number 03-26 757, further elaborates that the February 1984 letter from the Department of the Army, U.S. Army Toxic and Hazardous Materials Agency stated that herbicide 2,4,5-T was utilized during the 1960s through the early 1970s at Fort Drum, New York, to improve the line of vision from observation points to target impact areas as well as to control brush along roads in the main impact area. Notably, 2,4,5-T and its contaminant TCDD is listed as a qualifying herbicide under 38 U.S.C.A. § 1116(a)(4) and 38 C.F.R. § 3.307(a)(6)(i). The Board observes that prior Board decisions have no precedential value in subsequent Board decisions. Nonetheless, the validity of the July 1981 report prepared by the Chemical Systems Laboratory at the Aberdeen Proving Ground and the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency cited above were accepted by the Board and the Court in prior proceedings. The Board, at this time, has no reason to doubt the validity of these two government agency reports. Resolving reasonable doubt in favor of the Veteran, and in light of the February 1984 letter from the Department of the Army, U.S. Army Toxic and Hazardous Materials Agency stating that the herbicide 2,4,5-T was utilized during the 1960s through the early 1970s at Fort Drum, New York, the other articles and reports of record, along with this Veteran's service dates and corroborating lay statements, the Board finds that the Veteran was exposed to herbicides during his active military service while stationed at Fort Drum. 38 U.S.C.A. § 5107(b). The reports, studies, and lay statements referenced are evidence, and the Board is not making any legal determinations regarding presumptive exposure; rather, this is actual exposure based on a facts found basis. The Veteran provided positive nexus opinions from his treating physicians with regard to each of his claimed disabilities, as it relates to herbicide exposure. There are also VA medical opinions that link the Veteran's diabetes and prostate cancer if he was exposed to dioxins at Fort Drum. Although there is some negative nexus evidence in the file, after a review of the record, the Board finds the evidence is in relative equipoise regarding the Veteran's disabilities and a link to exposure to herbicides. As the benefit of the doubt doctrine is for application, service connection is warranted. ORDER Entitlement to service connection for diabetes mellitus, type II is granted. Entitlement to service connection for cancer of the neck is granted. Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for bladder cancer is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs