Citation Nr: 18157096 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-38 103 DATE: December 11, 2018 ORDER Entitlement to service connection for chronic lymphocytic leukemia (CLL), is denied. FINDING OF FACT The Veteran did not serve in Vietnam and the evidence does not show that he was exposed to an herbicide agent and/or chemical/hazardous substances known to cause CLL during his active duty military service. CONCLUSION OF LAW The criteria for service connection for CLL are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 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 February 1974 through February 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has not raised any issues with the VA’s duty to notify or duty to assist. Thus, the board need not discuss any potential issues in this regard. See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The Veteran asserts that his CLL is secondary to exposure to herbicide agents or other hazardous materials while stationed in the United States at Fort Benning, Georgia, and/or at one or more of the following military bases in the United States which he visited during his training periods: Fort Jackson, South Carolina (for Basic Training and Advanced Individual Training); Fort McClellan, Alabama; Eglin Air Force Base, Florida; Fort Stewart, Georgia; and Fort Gordon, Georgia. The Veteran’s service personnel records, including the Form DD-214, confirm that he was stationed at Fort Benning and other records indicate initial training at Fort Jackson. Likewise, it is not unreasonable that he would have trained at the other locations he indicated in connection with his duties as an administrative specialist with the 197th Support Battalion, that was based at Fort Benning. 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 (Fed. Cir. 2004). Service connection for certain chronic diseases, including leukemia, may also be established based upon a legal “presumption.” See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). See also Walker v. Shineski, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including CLL, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iv) are met, such as service in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). Here, the Veteran did not serve in Vietnam or any of the pertinent areas of Korea. Nor did he serve in the Air Force on an aircraft known to have been used to spray herbicide agent during the Vietnam era. Therefore, service connection based on these presumptions is not indicated. Veterans who have served 90 days or more of active service during a war period or after December 31, 1946 and are diagnosed with a chronic disease listed at 38 C.F.R. § 3.309(a), which includes leukemia, are presumed to be service connected if the disease became manifest to a degree of 10 percent or more within one year from the veteran’s date of separation from service. 38 C.F.R. § 3.307(a)(3). To be considered chronic, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). Where the condition noted during service, or within one year after separation from service, is not shown to be chronic, or where the diagnosis of chronicity may legitimately be questioned, then a showing of continuity of symptomatology after the veteran’s separation from service is required to support the claim. 38 C.F.R. § 3.303(b). In this case, CLL did not manifest itself either in service or within one year from his separation from service. The record shows that the CLL was first diagnosed in May of 2011. The record is devoid of any evidence that manifestations of the CLL were present at any time prior to then. Therefore, service connection based on its presence to a degree of 10 percent within one year of service discharge, or on any continuity of symptomatology since service is not indicated. Even if a veteran is not entitled to a presumption of exposure, a veteran may prove a nexus on a direct service-connection analysis. Here, the Veteran meets the first of the three elements of direct service connection, because the evidence clearly demonstrates that he has a current diagnosis of stage III CLL. The Veteran, however, has not shown his competence to establish by his assertion alone that while on active duty he was exposed to herbicide agents or other substances that caused him to develop CLL. Therefore, his statements to the effect that he was exposed to herbicide agents or substances that cause CLL are not probative. Likewise, the statements he submitted from other laymen that they felt they too were exposed to such substances when serving at bases at which the Veteran also served, similarly are not probative. The document submitted that appears to be from a 2014 study about the condition of the property at Fort Benning and describes the use there of pesticides, including malathion, to control weeds, insects and other pests, as well as the on-line article from an environmental news journal about the health and environmental dangers of the use of pesticides such as malathion, are also not probative since the dangers from malathion that are mentioned do not include the Veteran’s claimed disability. Since the record fails to show the presence of CLL until many years after service, and it does not contain probative evidence that the Veteran was exposed during service to substances known to cause CLL, a basis upon which to establish service connection has not been presented. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zizzi