Citation Nr: 1731591 Decision Date: 08/07/17 Archive Date: 08/16/17 DOCKET NO. 12-21 076A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant, appellant's daughter. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1971 to April 1981; he died in October 2011, and the appellant, his surviving spouse, has properly substituted on his behalf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The appellant appeared at a Travel Board hearing in April 2017. A transcript is of record. The issue of entitlement to service connection for the cause of the Veteran's death was initially raised by the appellant and it has not been adjudicated. The below claim grants service connection for the Veteran's fatal lung cancer, and the claim for dependency and indemnity compensation (DIC) is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran experienced lung cancer during his lifetime, and this disease has been positively linked to exposure to dioxin-based herbicides such as Agent Orange. 2. It is at least as likely as not that the Veteran, as an Army logistician serving in Okinawa between May 1972 and June 1973, had direct exposure to barrels containing dioxin-based herbicides such as Agent Orange. 3. The Veteran died of lung cancer in 2011, and the appellant, his surviving spouse, has properly substituted herself as appellant in this case. CONCLUSION OF LAW The criteria for entitlement to service connection for lung cancer have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in October 2011 as a result of metastatic lung cancer. At the time of his death, he had a pending claim for service connection for said cancer, and his surviving spouse has, as noted in the introductory section, properly substituted herself to carry on the claim on his behalf. Also as noted in the introductory section, a claim for entitlement to service connection for the cause of the Veteran's death remains pending at the RO. Essentially, prior to the Veteran's death, he contended that his service in Okinawa caused him to be exposed, on a direct basis, to tactical herbicides such as Agent Orange. The Veteran asserted that the chemicals were sprayed in his proximity as a means to control vegetation, and also, that in his role as an ammunition specialist, he would physically remove drums of Agent Orange from ships to be either placed into temporary storage or to be moved onward to other locations in the Pacific (e.g. Johnston Atoll). Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be current disability resulting from that injury. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including lung cancer, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore and other locations, if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313; Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. In addition to the presumptive grant of service connection associated with Vietnam Veterans with certain disabilities, VA must also consider as to if specific exposure to herbicides existed in any Veteran who claims such exposure, and must consider the claim as one for service connection on a direct basis. For those Veterans who served in the territorial boundaries of Vietnam during the period of hostilities, service connection for lung cancer will be granted on a presumptive basis on account of presumed exposure to tactical herbicides in that nation. See 38 C.F.R. §§ 3.307, 3.309. No such provision exists regarding those Veterans who served in Okinawa; however, if the appellant were able to show exposure to dioxin-based herbicides on a direct basis, the etiological association noted in the presumptive regulatory language can also be considered as supporting a claim on a direct basis. In this regard, it is noted that the Veteran served in the Army from 1971 to 1981, and he had documented service in Okinawa between May 1972 and June 1973. The Veteran's military occupational specialty (MOS) was ammunition specialist, and there is additional documentation of service as a supply specialist and operations coordinator. All of these duties suggest work in the logistics field, and given the island nature of Okinawa, it is reasonable to assume that the Veteran's duties as a logistician would include the movement of goods and cargo onto and off of various ships of the civilian Merchant Marine supplying that Japanese Prefecture. As the Veteran clearly had lung cancer (which, sadly, caused his death), the issue before the Board is, simply, whether evidence exists to support the claim of exposure to herbicides on a direct basis. The appellant has submitted several articles from The Japan Times, which is the largest English language newspaper in Japan with a publication history dating to 1897. It is a reputable journalistic source, and articles from it, dated in 2013, are supportive of the dioxin-based herbicide exposure claim. Specifically, a September 2013 article entry titled Okinawa Dumpsite Offers Proof of Agent Orange: Experts Say details a discovery of storage barrels under a soccer field. Two sources for this article, including a former professor at Boston University School of Public Health and a scientist formerly noted as having been "in charge of identifying defoliant contamination in Southeast Asia," described contamination of dioxin in Okinawa as comparable to "dangerous hot spots in Vietnam where the U.S. military had stored toxic defoliants during the 1960s and 1970s." Also, according to this article, independent testing done by a Japanese university verified that "all 22 barrels found beneath the soccer pitch in Okinawa City contained traces of herbicide, 2, 4, 5-trichlorophenoxyacetic acid (2,4,5-T), and 2,3,7,8-tetrachlorodibendo-p-dioxin (TCDD)." It was noted that the TCDD was the "most lethal form of dioxin," and water samples taken near the containers were "280 times legal limits." 2,4,5-T and TCDD were describes as two of the components of Agent Orange during the Vietnam War Era, and of the 22 barrels removed in 2013, "at least three" were labeled with markings from the Dow Chemical Company (the primary manufacturer of Agent Orange). In addition to this article, the appellant submitted a 1971 Army Department memorandum (cited in a Japan Times article) which stated that there were "herbicide stockpiles elsewhere in PACON," with two specific examples listed as Thailand and Okinawa. The appellant also submitted a photograph depicting barrels on Johnston Atoll after purported transport from Okinawa. The Department of Defense has, until recently, maintained that herbicides were not utilized, stored, or transited through Okinawa (this is despite the 1971 Army Department report). It is noted that this was the official response given to the RO upon their initial query; however, the more recent findings in 2013 by Japanese and American dioxin researchers (as documented in The Japan Times) were not taken into account. At the very least, the discovery in 2013 of compounds associated with dioxin-based herbicides, suggests some significant level of environmental exposure to groundwater (even if the chemicals were not sprayed directly as a defoliant). That the Veteran, as a logistician, would have direct exposure to barrels of herbicides as he alleged prior to his death, is something which, given the recent discovery of Vietnam Era herbicide containers, can be concluded to be part and parcel of his duties on Okinawa from 1972 to 1973. The 2013 article quotes from two reputable scientific sources, and both of these sources describe the groundwater contamination associated with proximity to the Vietnam Era barrels as being 280 times the legal limit for allowable dioxins in a water source. The contamination was so bad, that it was expressly described as being akin to the "hot spot" areas of Vietnam where dioxins were stored in a similar manner. Lung cancer is presumptively associated with exposure to dioxin-based tactical herbicides, and the Board can conclude that it is at least as likely as not that the Veteran had direct exposure to herbicides of this kind in Okinawa while loading and unloading merchant ships. While the specific amount of contamination in the Veteran is not known and cannot be known, all doubt is resolved in his favor, and a linkage between his fatal lung cancer and direct herbicide exposure can be made. As such, the claim for service connection will be granted. ORDER Entitlement to service connection for lung cancer is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs