Citation Nr: 18140467 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-41 252 DATE: October 4, 2018 ORDER Entitlement to service connection for residuals of non-Hodgkins lymphoma, previously claimed as lymph nodes cancer, to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. While stationed in Thailand, to include service at the Udorn Air Force Base, the Veteran’s military duties placed him in close proximity to the base perimeter. 2. The Veteran’s non-Hodgkins lymphoma is related to his exposure to herbicide agents, to include Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of non-Hodgkins lymphoma, previously claimed as lymph nodes cancer, to include as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1966 to April 1970. Unfortunately, the Veteran died in December 2016. This claim was previously before the Board in June 2017, at which time it was dismissed for the Board’s lack of jurisdiction over the appeal due to the Veteran’s death. Later in June 2017, the Appellant requested substitution for the Veteran’s claim, which was granted by the Regional Office in July 2017. The claim is now properly before the Board for further appellate action. Additionally, the Board notes that the Veteran filed his claim for “lymph nodes cancer.” The Veteran submitted medical records in connection with his claim containing diagnoses of lymphoma squamous cell carcinoma and non-Hodgkins lymphoma, noting in November 2015 that he is seeking service connection for the residuals of his non-Hodgkins lymphoma. Accordingly, the Board has expanded the Veteran’s claim to include non-Hodgkins lymphoma. 1. Entitlement to service connection for residuals of non-Hodgkins lymphoma, previously claimed as lymph nodes cancer, to include as due to herbicide exposure Prior to his death, the Veteran and his representative asserted that the Veteran was entitled to service connection for residuals of non-Hodgkins lymphoma due to herbicide exposure during his service in Thailand, where his military duties included patrolling the perimeter of the 7th Radio Research Field Station and Udorn Air Force Base. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Service connection may also be granted for certain specified diseases on a presumptive basis if a veteran was exposed to Agent Orange during active service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(b), 3.309(e). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The Department of Defense has also confirmed to VA that herbicides were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. Id. This applies only during the Vietnam Era. Id. The list of diseases associated with exposure to certain herbicide agents are as follows: AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin’s lymphoma; Hodgkin’s disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The term “soft-tissue sarcoma” includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing’s sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C. §1116 ; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Lastly, the availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran’s medical records included a diagnosis of non-Hodgkins lymphoma and lymphoma squamous cell carcinoma. The Veteran asserted that as a result of the residual effects of his non-Hodgkins lymphoma, he as Barret’s esophagus and required a stent to be placed in his neck. As the record does not contain medical evidence indicating that the Veteran’s non-Hodgkins lymphoma was fully in remission, the Board finds that the first element for establishing service connection has been met. Because non-Hodgkins lymphoma is one of the diseases presumed to be due to in-service exposure to herbicides, the Veteran need only establish that he either directly was exposed to herbicides or is presumed to have been exposed to herbicides to be entitled to service connection. 38 C.F.R. § 3.307 (a)(6)(iii), 38 C.F.R. § 3.309(e). In that regard, the Board notes that the Veteran and his representative asserted that the Veteran was exposed to herbicide agents during his service in Thailand. In this regard, a review of the Veteran’s military personnel records confirm that the Veteran was stationed in Thailand from 1969-1970, and a medical treatment records reflect that the Veteran received treatment while stationed at the Udorn Air Force Base. In a November 2015 Statement in Support of Claim, the Veteran stated he served as an E-5 Sergeant for the U.S. Army Security Agency and that part of his duties included supervising the men who were assigned to guard the perimeter, which required that the Veteran be physically present at the perimeter at least three times per week. See, November 2015 correspondence. The Veteran’s rank and service with the U.S. Army Security Agency are confirmed by his military personnel records. Accordingly, the Board finds the Veteran’s statements with respect to his military duties in Thailand, and his placement at the Udorn Air Force Base, to be credible. The Board also notes that a February 2015 correspondence from the United States Army Intelligence and Security Command specifically stated that while there are no references to Agent Orange or other herbicide agents being used at the 7th Radio Research Field Station where the Veteran was also stationed, “it should be noted that the nature of such reports is to exclude a great deal of operational detail. The omission of a specific incident should not necessarily be construed as contradicting [the Veteran’s] claims.” Based on the available evidence of record, the Board finds that the most probative evidence supports a finding that the Veteran was stationed at one of the Royal Thai Air Force Base and that his military duties placed in close proximity to the perimeter. Therefore, herbicide exposure is conceded and the second element for establishing service connection has been met. As outlined above, the Veteran is presumed exposed to herbicide agents, and therefore, the Veteran is entitled to presumptive service connection for the above enumerated disabilities, to include non-Hodgkins lymphoma. As the Veteran’s non-Hodgkins lymphoma manifested to a compensable degree, and VA has found that there is a link between herbicide exposure and non-Hodgkins lymphoma, service connection for non-Hodgkins lymphoma as due to herbicide exposure is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel