Citation Nr: 18148048 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-22 834 DATE: November 6, 2018 ORDER Entitlement to service connection for chronic lymphoid leukemia (CLL) is denied. FINDING OF FACT 1. The veteran did not have active military service in the Republic of Vietnam during the Vietnam era and is not presumed to have been exposed to herbicide agents (Agent Orange) during service. 2. The Veteran has a current diagnosis of CLL which was first diagnosed in 2005. 3. The Veteran’s CLL disease did not manifest during active service or to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and CLL is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for chronic lymphoid leukemia have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, a hearing was held before the undersigned Veterans Law Judge. A copy of the transcript is of record. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as leukemia. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA regulations provide that, if a veteran was exposed to an herbicide agent (such as Agent Orange) during active service, presumptive service connection is warranted for All Chronic B-cell leukemias, including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia. Presumptive service connection for disorders as a result of herbicide agent exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The governing law provides that a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent... 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). In December 2011, the Veteran’s private physician completed a VA Disability Benefits Questionnaire (DBQ). This report indicated that the Veteran has “chronic lymphoid leukemia,” which is indicated to be a chronic B-cell leukemia. The original date of diagnosis is indicated to be August 2005. Other private medical records support this diagnosis. The Veteran’s service treatment records contain no evidence showing that the Veteran had CLL during service. The Veteran has a current diagnosis of CLL which was made in 2005, approximately 28 years after he separated from active duty. The Veteran’s claim is that he warrants service connection for his CLL based upon Agent Orange exposure during service. In an October 2011 written statement, he wrote that “I feel that I was exposed to Agent Orange while serving aboard the USS PIEDMONT. I was a store keeper. I believe that I was exposed while unloading Agent Orange while decommissioning the ship.” In December 2011 he submitted a second written statement in which he reported: I feel that I was exposed to Agent Orange from being a store keeper on a ship. If you look at my ships [sic] records during the early 70’s my ship was stationed in Da Nang Harbor and other parts of Vietnam. After that it went to Naples Italy which is where I boarded the boat. After arriving on board. We as store keepers took complete inventory of the store room which included barrels of Agent Orange. Also numerous valves and other parts seeing as we provided repairs to some of the ships that provided service in the brown water. We would exchange parts from ou[r] boats to theirs. In January 2012 the Veteran submitted another written statement. In this statement he laid out what he believed to be the history of the USS PIEDMONT (AD 17). He reported that the ship had been in Da Nang harbor, Vietnam from June to November 1972 and in Japan from July 1973 to January 1974. He further reported that he was stationed aboard this ship from April 1975 until December 1977. He also asserted that he handled repair parts that had come from ships which were “possibly contaminated” with Agent Orange from the ships prior duties in the Pacific several years earlier. In his May 2013 Notice of Disagreement (NOD) the Veteran asserted different theories of his belief of being exposed to Agent Orange contamination, including contamination of the fresh water evaporation system and the anchor and anchor chain. In February 2017 the Veteran testified at a hearing before the undersigned. His testimony restated his belief as asserted in his prior written statements that he believes he was exposed to Agent Orange because of his ship having been to Vietnam years before he served aboard, or because the ship had previously repaired vessels that had been in Vietnam and were somehow contaminated. The Veteran served on active duty from December 1974 to December 1977; he served aboard the USS PIEDMONT (AD 17), a destroyer tender, from April 1975 to December 1977. By his own admission he did not serve in Vietnam. He is not presumed to have been exposed to Agent Orange during active service. His entire theory is that because the USS PIEDMONT apparently was stationed in Da Nang harbor, Vietnam from June to November 1972 and in Japan from July 1973 to January 1974 that the ship was contaminated with Agent Orange to result in his exposure during service aboard years later. He also asserted at some point that he handled barrels of Agent Orange which were aboard his ship. VA development with the service department (JSRRC) indicated that Navy ships were not used to store or transport Agent Orange. While the Veteran has made various assertions of Agent Orange exposure during his service aboard the USS PIEDMONT, these assertions are inconsistent with the use of this herbicide in Vietnam. Moreover, he is not competent to testify as to the potential for contamination by Agent Orange used tactically years before in Vietnam on the ship which he served aboard years later at a great distance from Vietnam. Despite his assertions of contamination of his ship, after full development, there is no indication that he served in Vietnam and exposure to herbicides can be conceded. Exposure to herbicide agents is not otherwise shown by credible evidence of record. The preponderance of the evidence is against the Veteran’s claim. The Veteran has a current diagnosis of CLL. There is no competent evidence suggesting that this manifested during service, or within a year of separation from service. There is no probative evidence linking it to service. The Veteran’s primary assertion is that he warrants service connection on the basis of herbicide agent exposure. The Veteran did not serve in Vietnam and his assertions of his ship being contaminated with Agent Orange years earlier to result in Agent Orange exposure after the fact are not supported by any other probative evidence. Exposure to Agent Orange or any herbicide agent is not otherwise shown. (Continued on the next page) As the evidence is against a finding that the Veteran was exposed to herbicide agents, the claim cannot be granted on this basis. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel