Citation Nr: 19118908 Decision Date: 03/15/19 Archive Date: 03/14/19 DOCKET NO. 16-55 265 DATE: March 15, 2019 ORDER Entitlement to service connection for hairy cell leukemia, to include as secondary to exposure to an herbicide agent, is granted. REMANDED Entitlement to service connection for chromosome damage, to include as secondary to treatment for leukemia, is remanded. Entitlement to service connection for anemia, to include as secondary to leukemia, is remanded. Entitlement to service connection for polycythemia vera, to include as secondary to leukemia, is remanded. Entitlement to service connection for thrombocytopenia, to include as secondary to leukemia, is remanded. Entitlement to service connection for splenomegaly, to include as secondary to leukemia, is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran had regular contact with the perimeter of the base while serving at Takhli and Udorn Royal Thai Air Force Bases where herbicide agents were sprayed. 2. The Veteran was subsequently diagnosed with hairy cell leukemia. CONCLUSION OF LAW The criteria for entitlement to service connection for hairy cell leukemia, to include as due to exposure to an herbicide agent, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from September 1969 to November 1974, including in the Royal Thai Air Force Bases (RTAFB) at Takhli and Udorn. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to service connection for hairy cell leukemia, to include as due to exposure to an herbicide agent 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, if a Veteran was exposed to an herbicide agent during active service, certain diseases, including hairy-cell leukemia, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met even though there is no record of such disease during service, provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). Exposure to an herbicide agent is presumed under certain circumstances, including when a claimant had active duty service within the Republic of Vietnam during certain periods. VA’s regulations do not grant such a presumption based on service on RTAFBs. However, pursuant to Memoranda from VA’s Compensation and Pension Service regarding the use of herbicide agents in Thailand during the Vietnam War era, 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 military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. The designated Thailand bases include the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. See also VA Adjudication Procedure Manual M21 (Manual), M21.IV.ii.1.H.5.b. While the Board is not bound by the Manual, the Board ultimately finds that there is credible evidence that the Veteran routinely served along the perimeter of two of the named RTAFBs. The Veteran has been consistent in his reports regarding the conditions of his service at both Takhli and Udorn RTAFB. At the hearing, he explained that he worked as a munitions loading officer while serving at Takhli RTAFB and as a munitions service officer at Udorn RTAFB. He described similar duties at each RTAFB, noting that his living quarters were close to the perimeter while in Takhli. While serving at these bases, he testified that he worked primarily along the flight line and would also occasionally travel to the bomb dump area along the perimeter of the base. He also indicated that he would frequently have to travel to the end of the runway while serving at the Udorn RTAFB, which he noted was the Arm and Disarm area of that facility. In support of his claim, he also provided detailed colored maps of the RTAFBs to illustrate the location of both his sleeping quarters and work duties around the base and describing both the perimeter of the base and what he described as a 500-meter clear zone that was in place extending from the border and which was cleared of vegetation. In addition to the Veteran’s testimony, a former Air Force colleague with whom the Veteran had served at Udorn AFB confirmed at the hearing that the munitions storage area at which both he and the Veteran regularly worked was at the perimeter of the base. This colleague also largely corroborated the Veteran’s testimony regarding the locations and circumstances of the Veteran’s service at that RTAFB. The Board finds that the statements of the Veteran and his fellow servicemember are both credible and probative with respect to the circumstances of his service and the areas within the RTAFBs he regularly had to visit as part of his official duties. Given this testimony, the Board finds that the probative, competent, and credible pieces of evidence of record are at least in equipoise with respect to the question of whether the Veteran served on the perimeter of a RTAFB during the Vietnam War era. As the record demonstrates a conclusive post-service diagnosis of hairy-cell leukemia, the Board therefore finds that herbicide agent exposure has been established on a direct basis and the criteria for service connection for this disability have been met. REASONS FOR REMAND Entitlement to service connection for chromosome damage, anemia, polycythemia vera, thrombocytopenia, and splenomegaly, to include as secondary to treatment for leukemia is remanded. While the medical evidence of record is clear that the Veteran received treatment for hairy-cell leukemia post-service, it is less clear with respect to the question of whether the other claimed conditions are related to that condition. The Veteran has not yet been afforded a VA medical examination to address that question. The record does contain July 2018 disability benefits questionnaires regarding these additional questions suggesting that such a link exists, but no significant rationale accompanies these opinion. Moreover, other clinical evidence of record suggests that these secondary disabilities have either resolved prior to his claim or are attributable to other diseases. For instance, a private treatment record from July 2014 suggests that the Veteran did not, at that time, actually have a diagnosis of polycythemia vera, whereas a subsequent clinical record from that facility in September 2018 indicated that secondary polycythemia was related to thyroid carcinoma, rather than hairy-cell leukemia. Similarly, although the July 2018 disability benefit questionnaire suggests a diagnosis of “chromosome damage” is related to the Veteran’s hairy-cell leukemia, no further explanation is given regarding which specific disability or functional impairment could be attributable to that abnormality. On remand, the Veteran should be afforded the opportunity to attend a medical examination to determine the relationship between hairy-cell leukemia and the other claimed conditions. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chromosome damage, anemia, polycythemia vera, thrombocytopenia, and splenomegaly. The examiner must provide an opinion regarding the following questions: (a.) Has the Veteran had a current diagnosis of anemia, polycythemia vera, thrombocytopenia, and splenomegaly at any point since he filed his claim for service connection in June 2014? (b.) If the answer to (a) is yes, is it at least as likely as not that any such current disability is proximately due to hairy cell leukemia, or the treatment the Veteran received for that disability? (c.) If the answer to (a) is yes, is it at least as likely as not that any such current disability has been aggravated by (worsened in severity beyond the natural progression of the disease) the Veteran’s hairy cell leukemia or the treatment for that disability? (d.) Is it at least as likely as not that the Veteran has a current disability manifested or caused by any chromosome damage that is attributed to treatment for hairy cell leukemia? Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel