Citation Nr: 18157499 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-06 872A DATE: December 12, 2018 ORDER Entitlement to service connection for lymphoma, to include as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for residuals of a back injury, to include degenerative disc disease (DDD), is remanded. Entitlement to service connection for a chronic eye disability is remanded. Entitlement to service connection for a chronic disability resulting in balance and equilibrium difficulties is remanded. Entitlement to service connection for claimed residuals of a concussion and traumatic brain injury (TBI), other than a scar, is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran was exposed to herbicides in service and his lymphoma is due to the in-service exposure to herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for lymphoma are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1973 to August 1978. In a December 2016 decision the Board of Veterans’ Appeals (Board) denied the above listed claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a April 2018 Memorandum Decision, the Court vacated the portion of the December 2016 decision that denied the above listed claims and remanded the matters for compliance with the Court’s instructions. Entitlement to service connection for lymphoma, to include as due to herbicide exposure. The Veteran contends that the current lymphoma was caused by in-service herbicide exposure while at Eglin Air Force Base (AFB). He asserts that herbicides were used at Eglin AFB from 1962 to 1970, and toxins were still around while he was stationed at Eglin AFB. He asserts that he drank contaminated water and was around areas that had previously been treated with herbicides. The Board concludes that the Veteran has a diagnosis of non-Hodgkin’s lymphoma that is related to exposure to herbicides in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As noted in the April 2018 Memorandum Decision, VA issued a memorandum in April 2016 that sufficient information required to verify herbicide exposure did not exist, stating that service treatment records did not support service in Vietnam or exposure to herbicides in any location and that the Veteran did not respond to a request regarding dates, location, and nature of exposure. The basis of the Veteran’s claim is herbicide agent exposure. The record does not show that he served in the Republic of Vietnam or near the Korean demilitarized zone during his active service. Hence, he is not presumed to have been exposed to an herbicide agent during his active service. See 38 C.F.R. §§ 3.307 (a)(6); 3.309(e). Instead, the Veteran seeks entitlement to service connection via direct proof of exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Court pointed out that additional evidence was submitted after April 2016. In May 2016 the Veteran reported that as a weather equipment technician he performed duties in restricted areas at Eglin AFB, where he was exposed to Agent Orange in the groundwater, drinking water, and fishing ponds. In a July 2016 communication to VA, the Veteran cited to an August 2012 Board decision in which the Board resolved the benefit of the doubt in favor of the appellant in that case and found him exposed to herbicides in service under the particular circumstances of that case, which included service at Eglin AFB. The Veteran also submitted an article from Vietnam Veterans of America titled “Air Force Admits Agent Orange Spraying in Florida in 1962 – 1970,” which explained that herbicides were sprayed at Eglin AFB and dioxin was found in water and animals in the area. Finally, the Court noted that May, July and September 2016 statements by the Veteran provided dates, location, and nature of exposure at Eglin AFB and an article as well as a Board decision supporting his assertion as to exposure to herbicide use at Eglin AFB. A September 2016 letter from a private physician indicated that the Veteran reported working outside four to five times per week at Eglin AFB, where there was brown vegetation that he attributed to herbicide use, and that he caught and ate fish from waters surrounding the base. The doctor was noted to state that he reviewed an article regarding Agent Orange and Eglin AFB entitled “Long Overlooked Historical Information on Agent Orange and TCDD Following Massive Applications of 2, 4, 5-T-Containing Herbicides, Eglin AFB, Florida.” The private physician noted that the veteran developed lymphoma in 1990 and relapsed in March 2015. The private physician opined that the Veteran had significant exposure to herbicides while at Eglin AFB and that it was more likely than not that such exposure contributed to the Veteran’s lymphoma. Review of the claims file reveals that the Veteran served as a Weather Equipment Specialist at Eglin AFB. In the May 2016 statement, the Veteran reported that as a Weather Equipment Technician he had to perform duties in and around the various airfields and ranges closed to the public. He further noted that all his duties were performed in secure areas of Eglin AFB that even most active duty Air Force members did not have authorization to access. In a June 2016 response from the Compensation Service, it was noted that a two square mile area of Eglin’s 88 square miles was used to test various herbicides from 1962 to 1970. The testing was done in a remote forested site called C-52A, which was not located near base personnel and was not open to base personnel. In the referenced July 2016 statement, it was reported that the Veteran worked in restricted area C-52A where Agent Orange and related herbicides were tested. The September 2016 private physician statement, referenced above, indicates that the Veteran’s diagnosis was non-Hodgkin’s lymphoma. Affording the Veteran the benefit of the doubt, based upon his reports of his duty and locations at Eglin AFB, the articles regarding the use of herbicides at Eglin AFB, and the opinion of the private physician, the Board finds that the Veteran was exposed to herbicides while serving at Eglin AFB. In addition, the physician has opined that the Veteran’s exposure to herbicides has contributed to his lymphoma. As the medical opinion associates the Veteran’s lymphoma to his exposure to herbicides in service and as lymphoma is a disability which is presumptively associated with exposure to herbicides, the Board finds that entitlement to service connection for lymphoma is warranted and is, therefore, granted. Combee, 34 F.3d at 1039. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a back injury, to include DDD, is remanded. 2. Entitlement to service connection for a chronic eye disability is remanded. 3. Entitlement to service connection for a chronic disability resulting in balance and equilibrium difficulties is remanded. 4. Entitlement to service connection for lymphoma, to include as due to herbicide exposure, is remanded. 5. Entitlement to service connection for claimed residuals of a concussion and TBI is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. Review of the file reveals that the Veteran receives consistent treatment from VA. However, VA treatment records dated since June 2015 have not been obtained and associated with the claims file. A remand is required to allow VA to obtain them. It also appears the Veteran has received treatment from private providers, but related records have not been obtained. A remand is required to allow VA to obtain authorization and request these records. As noted by the Court, the July 1978 separation examination noted a scar around the back of the Veteran’s left ear, caused by a 1977 motorcycle accident, 20/20 vision and the Veteran’s denial of eye trouble, dizziness or fainting spells, frequent or severe headaches, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble. However, in finding that the Veteran’s head scar was due to the 1977 motorcycle accident, the Court pointed at that the Board at least tacitly acknowledged that the Veteran suffered an in-service head injury. Thus, it must be determined whether the in-service accident caused a concussion or otherwise led to at least some of the Veteran’s claimed disabilities, namely TBI residuals, balance issues, and back injury residuals. Review of the September 2011 eye examination reveals that the examiner noted the 1977 motorcycle accident. The examiner rendered the opinion that the Veteran “does not appear to have any ocular pathology that could be related to any in-service event disease or trauma.” However, the examiner does not provide any rationale for this determination. As the Veteran suffered an in-service motorcycle accident resulting in a head scar, the Board finds it necessary to afford the Veteran a VA examination regarding whether the Veteran’s in-service motorcycle accident caused TBI residuals, other than a scar; balance and equilibrium issues; back injury residuals, to include degenerative disc disease; or a chronic eye condition. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2015 to the present. 2. Ask the Veteran to identify all private providers and to complete a VA Form 21-4142 for each identified provider, to include Drs. S., B., and G., and at Twin Cities Hospital. Make two requests for the authorized records from the provider for whom adequate authorization to obtain records has been received, unless it is clear after the first request that a second request would be futile. 3. After completion of the both of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any TBI residuals, other than a scar; balance and equilibrium issues; back injury residuals, to include degenerative disc disease; and chronic eye condition. The examiner must opine whether any TBI residuals, other than a scar; balance and equilibrium issues; back injury residuals, to include degenerative disc disease; or a chronic eye condition, is at least as likely as not related to an in-service injury, event, or disease, including a 1977 motorcycle accident. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel