Citation Nr: 1804687 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-09 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for Non-Hodgkin's lymphoma, including due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In November 2017, the appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's virtual claims file. In May 2017, the Board remanded the matter for additional development. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran did not have service on land or in the waters offshore of the Republic of Vietnam during the Vietnam War era, including the inland waterways, and is not presumed to have been exposed to an herbicide agent during military service, nor was he otherwise exposed to an herbicide agent during military service. 2. Non-Hodgkin's lymphoma did not have its onset in service and is not otherwise related to service, to include herbicide exposure. CONCLUSION OF LAW Non-Hodgkin's lymphoma was not incurred in or aggravated by service, and may not be presumed to be related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Here, the Veteran was not afforded a VA examination in connection with his claim and the Board finds that an examination is not required. As will be discussed below, even though there is evidence of a current disability, there is no credible evidence of an "in-service event, injury or disease," which would support incurrence or aggravation. Further, there is no indication that the current disability may be related to an in-service event. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Service Connection The Veteran contends that he is entitled to service connection for Non- Hodgkin's lymphoma due to his exposure to herbicide agents in service while servicing C-141 aircraft at McCord Air Force Base which had traveled to Vietnam. In November 2017 the Veteran testified that herbicide agents had pooled at the bottom of the aircraft which had been to Vietnam and his position as an airborne navigation equipment repairman required him to crawl around in the liquid in the midst of his maintenance of the aircraft. See Board Hearing Transcript, pp. 6-7, 9. In April 2013 testimony, he testified at a hearing at the RO that he was stationed at McCord Air Force Base and Travis Air Force Base. He indicated the he was stationed with the 62nd Military Airlift Wing and primarily worked on C-141 aircraft. He also testified that he also worked on C-130 aircraft and that "...once in a while you had 123s in there". In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004 Specific listed conditions, such as Non-Hodgkin's lymphoma, are subject to service connection when diagnosed in herbicide-exposed Veterans. 38 C.F.R. § 3.309 (e). A Veteran who served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116. To be entitled to presumptive service connection for certain diseases associated with herbicide exposure, it must be established that the Veteran actually served in-country or otherwise set foot on the landmass. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (a claimant must have been present within the land borders of Vietnam at some point in the course of his military duty to be entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116 (a)(1) and 38 C.F.R. § 3.307 (a)(6)(iii) ). The Veteran has not alleged that his Non-Hodgkin's lymphoma was first manifested during active duty. Service treatment records are silent for any diagnosis or complaints related to cancer or associated signs and symptoms. Direct service connection based on manifestation in service is not warranted. The records do not show, nor does the Veteran contend, that he served in-country Vietnam or otherwise set foot on the landmass of Vietnam. Rather, the Veteran claims service connection on the basis that the aircrafts he worked on contained herbicide agents which he was exposed to during his maintenance of said aircrafts. Presumptive service connection as an herbicide exposed Veteran in Vietnam is therefore not be applicable. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). 38 C.F.R. § 3.307 (a)(6)(v) provides that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. The provisions of 38 C.F.R. § 3.307 (a)(6)(v) with regard to the presumption of exposure to herbicide agents in connection with C-123 aircraft is not applicable in this case. As noted above, in November 2017, the Veteran's testimony indicated that he was stationed at McCord Air Force Base and worked on C-141 aircraft. In April 2013 testimony, he testified at a hearing at the RO that he was stationed at McCord Air Force Base and Travis Air Force Base. He indicated the he was stationed with the 62nd Military Airlift Wing and primarily worked on C-141 aircraft. He also testified that he also worked on C-130 aircraft and that "...once in a while you had 123s in there". With regard to the Veteran's contention that he was exposed to Agent Orange through contact with airplanes, he is not shown to have regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent as defined by the regulation and as such the presumptive service connection under 38 C.F.R. § 3.307 (a)(6)(v) is not warranted. Notwithstanding the foregoing, the Veteran may still establish service connection on a different basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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. §§ 1110, 1131; 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). Here, there is evidence that the Veteran had a disability during the period on appeal - namely Non-Hodgkin's lymphoma. However, the preponderance of the evidence is against a finding that he was exposed to herbicides or any other event which caused his Non-Hodgkin's lymphoma. The Veteran testified that he believed the liquid substance which had pooled at the bottom of the aircraft in which he worked during service was an herbicide agent. The Veteran had a multiple step analysis regarding his conclusion. First, he pointed out the history of spraying herbicides in Vietnam. Next, he highlighted Vietnam's heavy rains and the aircraft transport of troops from Vietnam and their gear. Next, he explained that herbicide agents ran off of the herbicide and rain exposed gear while on the aircraft and pooled in areas in which he worked. He did not provide any supporting documentation or evidence to support his testimony. Therefore, the Board does not assign any probative value to the statement regarding his exposure to herbicide agents. The Veteran also testified that his oncologist informed him that his Non-Hodgkin's lymphoma is a cancer connected directly with exposure to herbicide agents. See Board Hearing Transcript, p.10. However, the Board does not interpret this statement to mean that the doctor opined that (a) exposure to herbicide agents is the only way to contract Non-Hodgkin's lymphoma or (b) the Veteran was factually exposed to herbicide agents. As noted above, if a Veteran was exposed to herbicide agents during active service, VA will grant service connection for certain diseases, including Non-Hodgkin's lymphoma. The Veteran has not met the threshold requirement of proof of exposure to herbicide agents in service. Therefore, the Board does not assign any probative value to the Veteran's testimony regarding his oncologist. The Board acknowledges the Veteran's assertions that his non- Hodgkin's lymphoma is the result of his military service. However, the Veteran has not proven that he is competent to make such an assertion. He has not presented any probative evidence which corroborates his statement that the liquid which pooled at the bottom of the aircraft was indeed herbicide agents and such assertion is beyond the scope of his personal knowledge and powers of observation. Further, he has not presented any competent evidence which would otherwise connect his cancer to service. As such, the Board affords the Veteran's statements regarding a link between his current non-Hodgkin's lymphoma and his military service no probative weight. In sum, there is no competent evidence which establishes that the Veteran was exposed to Agent Orange during service. Although the Veteran alleges the exposure through liquid on an aircraft, this exposure has not been corroborated by independent sources. An award of VA benefits may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (2017); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Accordingly, a preponderance of the evidence is against a conclusion that the Veteran was exposed to herbicides during service, and he is not entitled to service connection for non-Hodgkin's lymphoma based on an herbicide exposure theory. ORDER Entitlement to service connection for Non-Hodgkin's lymphoma, including due to herbicide exposure, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs