Citation Nr: 18112678 Decision Date: 06/21/18 Archive Date: 06/20/18 DOCKET NO. 15-13 114 DATE: June 21, 2018 ORDER Entitlement to service connection for T-cell large granulocytic lymphocytic (LGL) leukemia, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran’s service records do not show that he had service or regular duty on the perimeter of a Royal Thai Air Force Base in Thailand. 2. The Veteran’s T-cell LGL leukemia did not have onset in service, did not manifest within one year of separation from service, and is not otherwise the result of a disease or injury incurred in service. CONCLUSION OF LAW The criteria for service connection for T-cell LGL leukemia are not met. 38 U.S.C. § 1101, 1112, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. Entitlement to service connection for T-cell LGL leukemia, to include as due to herbicide exposure The Veteran asserts that service connection is warranted for T-cell LGL leukemia due to exposure to Agent Orange during his active service in Thailand. He claims that although his military occupational specialty was cook while stationed in United States Army Pacific (USARPAC), Thailand, he drove a truck to and from Royal Thai Air Force Bases, passing through perimeter gates and driving on the perimeter roads to access the bases due to staffing issues, he was involved in construction work as a dump truck driver along the perimeter. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, such leukemia, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). With respect to chronic diseases under 38 C.F.R. § 3.309(a), continuity of symptomatology alone can be sufficient to establish service connection. Walker. Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (d) are met, even though 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposis’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). On August 31, 2010, VA amended 38 C.F.R. § 3.309 (e) to add hairy cell leukemia and other chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson’s disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this amendment is to establish presumptive service connection for these diseases based on herbicide exposure. This final rule was published in the Federal Register. 75 Fed. Reg. 53, 202 (August 31, 2010). For the purposes of §3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. “With regard to the claim of exposure to herbicides while serving in Thailand, VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Specifically, the report observes that some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from the Republic of Vietnam, or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. (In this regard, the sense of the word “herbicide” as used in the manual is understood to mean “herbicide agent” as used in the regulation.) In this regard, it is very important for the Veteran to understand that this “fenced-in perimeter” would not be an area that a serviceman would normally pass through leaving or entering the base. If this were the case, any serviceman who served on this base would be entitled to the presumption of exposure. The majority of troops in Thailand during the Vietnam War 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam War, from February 28, 1961, to May 7, 1975. See M21-1. The Adjudication Procedure Manuel, M21-1, provides that, if herbicide exposure cannot be conceded based upon the above described facts, the veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure. If the veteran fails to furnish the requested information, the claim will be referred to the Joint Services Records Research Center (JSRRC) coordinator to make a formal finding that sufficient information required to verify herbicide exposure did not exist. The claim may then be decided based on the evidence of record. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, the presumptive legal criteria are not the sole method for showing causation. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. “Reasonable doubt” is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran has a current diagnosis of T-cell LGL leukemia. As an initial matter, the Board notes that the Veteran is not entitled to service connection for T-cell LGL leukemia on a presumptive basis, because, specifically, T-cell LGL leukemia is not one of the diseases recognized by 38 C.F.R. § 3.309 (e) as being presumptively caused by herbicide exposure. This is simply not hairy cell leukemia and any other chronic B-cell leukemias cited above. However, even if the Board were to assume that the condition were subject to presumptive service connection, the evidence fails to support the Veteran’s central contention, that is, that he was exposed to Agent Orange while stationed in Thailand. Further, service records confirm that the Veteran served with the 207th Signal Company (TROPO), at Camp Friendship, USARPAC, from November 1966 to November 1967. Review of Department of Defense listing of herbicide spray areas and test sites outside the Republic of Vietnam does not include Camp Friendship as a listed location. This is yet another basis to deny this claim. However, once again, even assuming that herbicides were used on the fenced-in perimeters of Camp Friendship, the most probative evidence fails to show that the Veteran’s duties would have placed him on or near the perimeters of Thailand military bases. In support of his claim, the Veteran submitted a witness statement from a fellow service member, J.D., who reported having served with the Veteran at different times throughout his service period, including while stationed in Thailand. J.D. reported that he and the Veteran were stationed together at Korat Airforce Base (Camp Friendship) for a couple of weeks, and he was subsequently assigned to other locations separate from the Veteran. During his time in Thailand J.D. served as a truck driver from November 1966 to November 1967. He stated that when driving to and from Royal Thai Air Force Bases he would occasionally run into the Veteran who was also driving a truck, and they would share their experiences, including witnessing the spraying of chemicals along the perimeter. However, the service treatment and personnel records document the Veteran’s MOS as cook and food handler. There is nothing in the service records that supports the Veteran’s contention that he served as a truck driver in Thailand, and drove from base to base, passing through perimeter gates and driving on the perimeter roads to access the bases. There is also nothing in the service records documenting any training or duties as driver outside of Thailand or at any time during the Veteran’s entire active duty service. The Board finds that the probative value of the current recollections and statements from the Veteran and J.D., made in connection with a claim for VA compensation benefits, more than 43 years after service, is outweighed and contradicted by the service records which are contemporaneous with the Veteran’s service and clearly document his duties as a cook and food handler, which would not have placed Veteran near the fenced in perimeter. Even if he had driven in the area, it is important for the Veteran to understand that this fact does not mean he would have driven into a fence-in area. Accordingly, for the reasons outlined above, presumptive service connection for T-cell LGL leukemia based on exposure to herbicide agents in active service for several reasons (each one of which provides a basis to deny this claim) is not warranted. However, the Board will consider other applicable legal theories of entitlement. 38 U.S.C. § 1113 (b); Combee, 34 F.3d 1039, 1042. The Veteran has not argued and the service treatment records do not reflect complaints, treatment or a diagnosis of T-cell LGL leukemia based while in service. Moreover, there is no competent and credible evidence of record linking the Veteran’s T-cell LGL leukemia based to his active duty service generally, including any Agent Orange exposure. While the Veteran has asserted his T-cell LGL leukemia is related to service, as indicated, the Veteran’s assertion is based on his contention of herbicide agent exposure. The Veteran is not competent to provide such an opinion regarding service connection under the facts of this appeal, as to do so requires medical expertise that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s T-cell LGL leukemia is related to his active duty service, and service connection for T-cell LGL leukemia based on a direct basis is not warranted. 38 C.F.R. § 3.303. Finally, there is no evidence that the Veteran’s T-cell LGL leukemia manifested to a compensable level within one year following separation from service. As there is no evidence of in-service manifestation or manifestation within the first post-service year, service connection for T-cell LGL leukemia based on continuity of symptomatology is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service injury, event or disease, that the Veteran’s T-cell LGL leukemia is causally related to his service, manifested within an applicable presumptive period, or that it is related to herbicide exposure. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel