Citation Nr: 18142691 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-10 576 DATE: October 17, 2018 REMANDED Entitlement to service connection for Non-Hodgkin’s lymphoma is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1961 to December 1965, including service on Okinawa between March 1962 and March 1963. This case is on appeal before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the issues on appeal. The Veteran seeks service connection for his Non-Hodgkin’s lymphoma, alleging that it was caused by herbicide exposure during service. The Veteran also contends that his neuropathy of the bilateral lower extremities is linked to his Non-Hodgkin’s lymphoma. See June 2015 notice of disagreement. Service connection means that the facts establish that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a disability, there generally must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Additionally, service connection may be established for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be also granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Moreover, the Department of Defense has confirmed to the VA that herbicides were also used in both Thailand and Korea. VA regulations provide that veterans who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been used, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv). Similarly, the majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. 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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. VBA Manual M21-1, IV.ii.1.H.5.b. Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) 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 if 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. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. The Veteran asserts that he was exposed to Agent Orange during his tour at Camp Hansen, Okinawa. The Veteran claims that the military routinely used herbicides to control foliage on the island. The Veteran also states that he came into direct contact with Agent Orange in the course of his regular duties. First, the Veteran alleges that in his capacity as a textile repairman, he would frequently handle tents that had been in Vietnam. The Veteran contends that these tents were already saturated with Agent Orange when they came to him for repair work. Secondly, the Veteran claims that he would unload barrels containing Agent Orange off ships at White Beach Port in Okinawa. See March 2016 Form 9. The Veteran does not allege, and his service personnel records do not show, relevant service in the Republic of Vietnam, along the Korean DMZ, or at one of the aforementioned Royal Thai Air Force Bases. As such, although Non-Hodgkin’s lymphoma is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e), the Veteran cannot rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to substantiate his claim. Nonetheless, the Veteran may still establish service connection by proving that he was actually exposed to herbicide agents. Once exposure is established, the presumptive provisions for the diseases listed in 38 C.F.R. § 3.309(e), including Non-Hodgkin’s lymphoma, become applicable. To this end, the Veteran submitted several newspaper articles concerning the military’s alleged storage of Agent Orange on Okinawa in the 1960’s and 1970’s. According to one article, surplus or damaged material from Vietnam, including herbicides, was returned to Okinawa for processing and disposal. It is reported that a series of reports released by the DoD under the Freedom of Information Act (FOIA) in September 2015 indicate that barrels of chemicals were stored outdoors along the shoreline, where their condition was allowed to deteriorate; and that by the early 1970’s, there were approximately 25,000 barrels of Agent Orange on Okinawa. Air and water samples taken in recent decades have shown high concentrations of TCDD dioxin, an essential component of Agent Orange, at several sites around the island, including Camp Hansen. See September 2015 correspondence; see also October 2015 correspondence. In response to this evidence, the RO conducted an investigation to ascertain the veracity of the Veteran’s claims. However, the investigation concluded that Veteran’s allegations of herbicide exposure on Okinawa could not be proven because the DoD has not identified any location on the island where Agent Orange was used, tested, stored, or transported. Furthermore, the RO investigation found that Agent Orange was transported directly from Gulfport, Mississippi, to ports in South Vietnam via merchant ships. See April 2017 correspondence. Notwithstanding the results of the RO investigation, the Board finds that the claims file contains evidence showing that the Veteran could have been exposed to herbicide agents during his tour on Okinawa. One of the newspaper articles submitted by the Veteran mentions a series of reports released by the DoD in September 2015 under FOIA, which detail the storage of herbicide agents on Okinawa in the 1960’s and 1970’s. Although several documents in the claims file reference these reports, the Board notes that they are not actually included in the record. Given that the DoD reports address the issue of herbicide contamination on Okinawa, which may overlap with the time-frame that the Veteran was stationed there and potentially contradicts the findings of the April 2017 RO investigation, the Board concludes that a remand is warranted to acquire these records. Lastly, the Veteran claims that his neuropathy of the bilateral lower extremities is secondary to his Non-Hodgkin’s lymphoma. See May 2018 appellate brief. Because a claim for secondary service connection requires the existence of a service-connected disability as a threshold matter, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, a remand is also warranted for the Veteran’s claims for secondary service connection for neuropathy of the bilateral lower extremities. The matters are REMANDED for the following action: 1. Obtain the DoD reports issued in response to the September 2015 FOIA request from the U.S. Army and Joint Services Record Research Center (JSRRC), or any other appropriate source(s). Document all requests for information as well as all responses in the claims file. 2. Review the DoD reports issued in response to the September 2015 FOIA request and take any additional development deemed necessary. 3. After completing the above, and any other development deemed necessary, adjudicate the appeal. The RO must also re-adjudicate the Veteran’s claim for secondary service connection for neuropathy of the bilateral lower extremities in light of any new evidence added as a result of this remand action. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel