Citation Nr: 18156149 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-49 565 DATE: December 11, 2018 ORDER Entitlement to service connection for hairy-cell leukemia is granted. FINDING OF FACT The Veteran’s hairy-cell leukemia is related to his in-service exposure to agent orange. CONCLUSION OF LAW The criteria for service connection for hairy-cell leukemia are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force (USAF) during peacetime from April 1983 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. On appeal, the Veteran contends that he is entitled to service connection with a total disability rating for his leukemia. Specifically, the Veteran alleges that he was exposed to toxic chemicals and herbicidal agents during service, which, he believes, has caused his leukemia. While stationed at an Air Force Base in Germany, the Veteran argues that he served as a first responder when there was a mid-air collision among aircraft during an August 1988 airshow. The Veteran alleges that he inhaled smoke consisting of jet fuel and other toxic chemicals. The Veteran also alleges that, while stationed at Davis-Monthan Air Force Base (DMAFB) in Tucson, Arizona, as a Law Enforcement Specialist (LES), he was exposed to both toxic substances and agent orange. To establish service connection, there must exist medical or, in certain circumstances, lay 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain diseases with a relationship to herbicide agent exposure, including hairy-cell leukemia, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii)–(iv), 3.309(e). Additionally, herbicide agent exposure is presumed for a veteran who performed service in the Air Force or Air Force Reserve when that individual 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. Under this presumption, “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. 38 C.F.R. § 3.307(a)(6)(v). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s Military Personnel Records (MPRs) document that the Veteran served as an LES at an Oklahoma Air Force Base from November 1983 to January 1986. The Veteran then was stationed at the Ramstein Air Base in Germany from January 1986 to May 1989, serving as Security Police. While the MPRs document that the base from which the Veteran was discharged was DMAFB, it does not provide details concerning the nature of the Veteran’s service at DMAFB from May 1989 until his discharge. The Veteran’s Request and Authorization for Separation form lists that the Veteran was a part of the 836th Mission Support Squadron. The Veteran’s Service Treatment Records (STRs) contain no treatment or diagnosis of leukemia. The Veteran’s MPRs indicate that, after review of the Veteran’s medical records, a separation examination was not required in accordance with Air Force Regulation 160-43. Post service, in June 2013, the Veteran filed for entitlement to service connection for hairy-cell leukemia. When he filed, the Veteran included both a personal statement, explaining his theory to entitlement (mentioned above), and a Hairy Cell and other B-Cell Leukemias Disability Benefits Questionnaire (DBQ) completed, in May 2013, by the Veteran’s private doctor, Dr. R.K. Dr. R.K. indicated that he diagnosed the Veteran with hairy-cell leukemia in April 2012. The DBQ contained no etiological opinion. In a February 2014 statement, the Veteran relayed that, as an LES at DMAFB, he daily was required to board C-123 aircraft in the storage yard to inspect for possible trespassers, which exposed him to agent orange. The Veteran also referenced, but did not provide or cite, a 1996 test, which purportedly revealed that C-123 aircraft at DMAFB tested positive for dioxin contamination. In June 2014, the Veteran submitted (1) a letter from Dr. R.K., (2) information provided by the American Cancer Society (ACS), (3) excerpts from an environmental study conducted by Oak Ridge National Laboratory (ORNL) in August 1989 for the United States Government (the Government), (4) information on benzene and trichloroethylene from the Agency for Toxic Substances and Disease Registry (ATSDR), and (5) legal argument in support of his claim. Of significance for this case, Dr. R.K.’s letter, which states that he has been treating the Veteran since his diagnosis in 2012. Dr. R.K. opined that it is more likely than not that the cause of the Veteran’s hairy-cell leukemia is his exposure to toxic substances during his military service, to include exposure to agent orange. The ACS information relates that there is sufficient evidence of association between herbicides (including agent orange) and hairy-cell leukemia, and that dioxin is known to be a human carcinogen. In an April 2015 filing, the Veteran submitted an article from the Institute of Medicine (IOM) titled “Post-Vietnam Exposure in Agent Orange—Contaminated C-123 Aircraft.” That article states that, between 1972 and 1982, about 1,500 to 2,100 Air Force Reserve personnel worked on C-123 aircraft previously used to spray agent orange. The article relays that herbicide residue on the interior surfaces would have remained mobile in an enclosed environment, meaning that service members could have been exposed through multiple routes. In its “key findings” section, the article states that Air Force personnel would have been exposed to herbicide residue aboard C-123 aircraft and that, in some instances, the exposure would have exceeded health guidelines for workers in enclosed settings. The Board recognizes and accepts that the Veteran has a current diagnosis of hairy-cell leukemia since April 2012. Thus, the Veteran has satisfied the first element of service connection. See Romanowsky, 26 Vet. App.at 293; 38 C.F.R. § 3.303(a). Ordinarily, to qualify for presumptive service connection for this type of herbicidal exposure, the Veteran must have regularly and repeatedly operated, maintained, or served onboard a C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. See 38 C.F.R. § 3.307(a)(6)(v). In his February 2014 statement, the Veteran references an uncited and unnamed study in 1996 that found that C-123 aircraft stationed at DMAFB were contaminated with agent orange. Upon independent investigation, the Board was able to locate the article printout to which the Veteran cites in his April 2015 filing. That “article” is a recitation of information from a book, published by the IOM. That book relates that, as early as 1981, at least thirteen C-123 aircraft known to have been used in the Vietnam War for the purposes of spraying agent orange were stored at DMAFB until their destruction in 2010. See INSTITUTE OF MEDICINE, Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft 40 (2015) (https://www.ncbi.nlm.nih.gov/books/NBK298851/#_ncbi_dlg_citbx_NBK29885). This information also verifies the 1996 study the Veteran referenced in his February 2014 filing. Thus, the Board is satisfied that the Veteran was stationed at DMAFB while DMAFB housed the dioxin-contaminated C-123 aircraft The Veteran’s MPRs are silent as to his duties while stationed at DMAFB. Nonetheless, the MPRs consistently detail that he served in security and policing. In this regard, where a Veteran is seeking service connection for any disability, due consideration shall be given to places, types, and circumstances of such Veteran’s service as shown by the Veteran’s service record, the official history of each organization, including lay evidence and the provisions required by section 5 of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act. 38 U.S.C. § 1154(a). With this in mind, the Veteran has reported that he was regularly required to inspect in the storage yard C-123 aircraft for possible trespassers. The Board finds the Veteran competent to report his daily duties while stationed at DMAFB. There is no evidence of record to the contrary, and the Board will accept the Veteran’s statement as credible. While perhaps not in the capacity envisioned by the regulation, the Board finds that the Veteran’s duty of daily inspecting the dioxin-contaminated C-123 aircraft qualifies as the type of regular and repeated conduct necessary to establish the in-service element for this presumptive exposure to herbicide. Thus, the Board will presume that the Veteran’s current diagnosis of hairy-cell leukemia was caused by his in-service exposure to agent orange, satisfying the elements for entitlement to service connection under §§ 38 C.F.R. § 3.307(a)(6)(v); 3.309(e). After careful examination, and affording all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is in relative equipoise. Therefore, service connection for hairy-cell leukemia is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet App. at 53. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel