Citation Nr: 19119332 Decision Date: 03/15/19 Archive Date: 03/15/19 DOCKET NO. 13-19 251 DATE: March 15, 2019 ORDER Entitlement to service connection for non-Hodgkin’s lymphoma, to include as due to herbicide agent exposure is denied. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure is denied. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), claimed as secondary to non-Hodgkin’s lymphoma is denied. REFERRED CLAIM In the June 2015 decision of the Board of Veterans’ Appeals (Board), the Veteran’s claim of entitlement to service connection for a bilateral hearing loss disability was denied. In December 2015, the Veteran submitted medical evidence from a private audiologist regarding a bilateral hearing loss disability. It appears that this evidence was intended to serve as an informal petition to reopen entitlement to service connection for a bilateral hearing loss disability. However, effective March 24, 2015, the United States Department of Veterans Affairs (VA) amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standardized forms prescribed by the Secretary. See 79 F.R. 57660 (Sept. 25, 2014). As a petition to reopen entitlement to service connection for a bilateral hearing disability has been reasonably raised by the record, it is REFERRED to the RO for appropriate action, to include forwarding VA’s standardized claim form to the Veteran. 38 C.F.R. § 19.9 (b) FINDINGS OF FACT 1. The Veteran did not serve in an area in which exposure to herbicide agents may be presumed; and the most probative evidence establishes that he was not exposed to herbicide agents during his active duty service. 2. There is no probative evidence of record linking the Veteran’s current non-Hodgkin’s lymphoma or diabetes mellitus, type II, to his active duty service. 3. The Veteran does not allege that his anxiety disorder had its onset in service; non-Hodgkin’s lymphoma is not service-connected, and thus service connection for anxiety as secondary to non-Hodgkin’s lymphoma is precluded as a matter of law. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for non-Hodgkin’s lymphoma, to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for an acquired psychiatric disability other than PTSD, claimed as secondary to non-Hodgkin’s lymphoma have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1971. These matters come before the Board on appeal from a September 2011 rating decision issued by a VA Regional Office (RO). These matters were previously adjudicated in a February 2018 Board decision. The Veteran perfected a timely appeal to the United States Court of Appeals for Veteran Claims (Court). In August 2018, pursuant to a Joint Motion for Partial Remand (JMPR) by the Veteran and the VA (the parties), the Court vacated the February 2018 Board decision with respect to these claims and remanded the matters back to the Board for compliance with the instructions in the JMPR. In the February 2018 Board decision, the Board generally concluded that the Veteran did not serve in an area in which exposure to herbicide agents was presumed and was not actually exposed to herbicide agents during his active duty service. In the August 2018 JMPR, the parties found that the Board erred in failing to consider (1) a lay statement from J. S. regarding the purported presence of Agent Orange at Camp Schwab, Okinawa; and (2) a December 15, 1961 declassified Air Force Memorandum discussing the chemicals used in Operation Ranch Hand shipped via the U.S.N.S. S.O. Bland and excerpts from its deck log showing that it stopped in Okinawa. These claims have returned to the Board for appellate consideration. In the June 2013 Substantive Appeal, VA form 9, the Veteran requested a Travel Board hearing. As noted in the February 2018 Board decision, the Veteran’s attorney properly withdrew this hearing request in October 2014. As no further hearing request has been received, the Board may proceed with its appellate review. The undersigned Veterans Law Judge has been assigned to consider this appeal pursuant to 38 C.F.R. § 19.3(a). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection for Non-Hodgkin’s Lymphoma and Diabetes Mellitus, Type II The Veteran has submitted claims seeking entitlement to service connection for non-Hodgkin’s lymphoma and diabetes mellitus, type II. The medical evidence of record shows that the Veteran has current diagnoses for non-Hodgkin’s lymphoma and diabetes mellitus, type II. The service treatment records are silent as to evidence of non-Hodgkin’s lymphoma or diabetes mellitus, type II. The Veteran does not contend, and the record does not show, that non-Hodgkin’s lymphoma or diabetes mellitus, type II, were present in service. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the Veteran must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his post-service non-Hodgkin’s lymphoma and diabetes mellitus, type II, are due to exposure to herbicide agents while he was stationed in Okinawa, Japan, between December 1970 and August 1971. Per VA regulations, if a veteran was exposed to herbicide agents during service, certain diseases are presumed to have been incurred in-service, if they manifest to a compensable degree within specified periods, and even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Non-Hodgkin’s lymphoma and diabetes mellitus, type II, are included in the list of enumerated diseases. However, critically, exposure to herbicide agents is not presumed for those veterans stationed in Okinawa, Japan. The presumptive regulations do not preclude a veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Thus, to support an award of entitlement to service connection in the current instance and in consideration of the Veteran’s contention, the evidence must demonstrate that his non-Hodgkin’s lymphoma and diabetes mellitus, type II, were caused by actual exposure to herbicide agents while serving on active duty. For the following reasons, the Board concludes that the claims must be denied because there is no probative evidence demonstrating that the Veteran was actually exposed to herbicide agents during active duty service or that his non-Hodgkin’s lymphoma and/or diabetes mellitus, type II, are medically attributable to his active service on any other basis. The Board has reviewed the complete appellate record but has found no direct lay evidence from the Veteran, competently alleging with sufficient specificity, that he was actually exposed to herbicide agents during his service in Okinawa, Japan. In a January 2012 lay statement, the Veteran recalled seeing “hundreds of barrels stacked on top of each other…dark-colored and marked with an orange stripe” next to where the armored track vehicles were parked. He also recalled that on one occasion he saw “a crew load some orange-striped barrels onto a Mike boat…[s]ome of the barrels were rusty, some looked newer, and some looked like they could have been leaking.” He further alleged he was in the water during and after this loading operation and may have been exposed. See Veteran submitted exhibit 11. The Veteran’s statements do not identify how the Veteran knew what the barrels contained, such as whether he can now recount writing on the barrels specifying Agent Orange or any other tactical “herbicide agent,” whether he was told at the time they contained herbicide agents, or whether it is his surmise based on other evidence (such as the list of places herbicide agents were tested). The lack of an articulated basis for his recent claim to know the contents of barrels he saw during active duty service many decades ago makes it difficult to determine that the Veteran is a reliable historian. Moreover, the Veteran submitted a link to a YouTube video entitled, “Agent Orange Okinawa documentary,” where the Veteran was interviewed. See November 2012 correspondence providing internet link and confirming the Veteran’s presence in the documentary. In this video, the Veteran stated, “[b]arrels were about 100 or 120 feet, something like that, away from us, and we always wondered what the heck were those 55-gallon barrels with the orange ring around them.” See Agent Orange Okinawa documentary, YouTube, https://www.youtube.com/watch?7feature=player_embedded&v=5tRkP2b3dsM#! (last visited, March 5, 2019), 30:00-30:42/47:59. This lay statement underscores that the Veteran has no direct knowledge of whether he was actually exposed to herbicide agents while serving in Okinawa, as he admitted he had no idea what chemicals were in the barrels he described. While the Veteran is competent to report that he remembered seeing barrels of chemicals while on active duty, as these statements are based on the purported personal observations and recollections of the Veteran; he is not competent to state that he was actually exposed to herbicide agents, to include Agent Orange, while on active duty service. See Layno v. Brown, 6 Vet. App. 465 (1994). This is because the Veteran has not demonstrated any experience with herbicide agents or chemicals that would have allowed him to recognize it in service and he has provided no indication that he is competent to identify or distinguish the herbicide agents listed in 38 C.F.R. § 3.307(a)(6)(i). See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson’s assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). To fill the significant evidentiary gaps in his sworn statement, the Veteran has relied on secondary sources, or recollections of others—most of which are speculative, at best—to argue that herbicide agents may have been present at Kadena Air Base while he served on active duty in Okinawa. The evidence simply does not support the conclusion that the Veteran was directly exposed to herbicide agents while on active duty. In the Board’s June 2015 remand decision, the RO was directed to follow the applicable provisions of the VA Adjudication Procedure Manual, known as the M21-1, to verify herbicide agent exposure in locations other than the Republic of Vietnam or the demilitarized zone (DMZ) in Korea. The RO was instructed to contact the Veteran and request approximate dates, location, and nature of the alleged herbicide exposure, as well as a detailed description of such exposure. The RO sent correspondence to the Veteran in July 2015 requesting this information, however the Veteran did not respond. Thus, the RO was left with the Veteran’s previous generalized allegations that Agent Orange was sprayed, stored and transported in Okinawa while he was stationed at Kadena Air Force Base to conduct further evidentiary review. As appropriate, the RO was directed to relay the Veteran’s allegations of in-service herbicide agent exposure to the Compensation Service and request a review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicide agents were used as claimed. If the Compensation Service’s review was unable to confirm that herbicide agents were used as claimed, and if sufficient information was received to allow for a meaningful search, a request was to be submitted to the Joint Services Records Research Center (JSRRC) for verification of herbicide agent exposure. VA has attempted to verify the Veteran’s reported exposure to herbicide agents during active duty service. In May 2005, the RO made a Personal Information Exchange System (PIES) request, demanding any documents that demonstrate exposure to herbicide agents. A June 2005 response indicates there are no records of exposure to [herbicide agents]. In a May 2016 memorandum that describes the steps taken in attempt to verify the Veteran’s reported exposure, the RO made a formal finding that sufficient information required to verify herbicide agent exposure did not exist. The Board has reviewed the service records and concludes that they do not contain evidence of in-service exposure to herbicide agents. In April 2016, the Compensation Service indicated that the DOD has provided a list of locations outside Vietnam and the Korean DMZ where tactical “herbicide agents,” such as Agent Orange, were used, tested, or stored. The Compensation Service noted that the list did contain names of individuals involved with the tactical “herbicide agents,” and did not reference routine base maintenance activities, such as range management, brush clearing, and weed killing. It further noted that such activities were accomplished with commercial herbicides on all military bases worldwide, and that commercial herbicides do not fall under the regulations governing tactical “herbicide agents” at 38 C.F.R. § 3.307(a)(6)(i). The Compensation Service also noted that Agent Orange was developed for jungle combat operations in the Republic of Vietnam and was used there from1962 to early 1971. There were no combat operations on Okinawa during those years, and thus, there was no need for Agent Orange use in Okinawa. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi to South Vietnam via merchant ships. Regarding the Veteran’s contentions, the Compensation Service concluded that the DOD list did not show any use, testing, or storage of tactical “herbicide agents” at Kadena Air Base in Okinawa, Japan. Therefore, Compensation Service could provide no evidence to support the Veteran’s claim that he was exposed to herbicide agents during his active duty service in Okinawa. The RO then sent a request for verification of exposure to herbicide agents to the JSRRC, as instructed in the M21-1. The JSRRC provided a response in May 2016 stating that VA lacked the information required to verify herbicide agent exposure in Okinawa. Considering the above, the Veteran’s claimed exposure to herbicide agents in Okinawa, Japan has not been verified through a review of the evidence of record, a PIES request, a request to Compensation Service, or a request to JSRRC. The Board finds these responses from governmental sources and repositories—such as DOD, the governmental department responsible for the custody, control, storage, and transfer of herbicide agents during their use for military purposes—to be credible, competent, and worthy of significant evidentiary weight. Pursuant to the Board’s June 2015 directives, the RO followed the M21-1 in undertaking appropriate administrative steps in attempting to verify the Veteran’s alleged in-service herbicide agent exposure. The M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules. Recently, in Overton v. Wilkie, 30 Vet. App. 257, 259 (2018), the Court held that “when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position without analysis.” Here, the Board finds that the M21-1’s guidelines on verifying the presence of herbicide agents outside of the Republic of Vietnam or the Korean DMZ, provided a structured method of obtaining information from the DOD and other records repositories necessary to justly adjudicate the Veteran’s appeal. Neither the Veteran nor his attorney has identified any reason why the M21-1’s procedures were inadequate, or what additional requests could have been reasonably made based on the evidence of record. Moreover, this is not a case where the Board is relying on substantive information contained in the M21-1, but rather a matter of the M21-1 setting out specific procedures for obtaining relevant information. For these reasons, the Board finds that the RO substantially complied with the Board’s June 2015 remand directives and its reliance on the M21-1’s procedures for independent verification of herbicide agent storage, use, and testing served as an appropriate method of data gathering. See Stegall v. West, 11 Vet. App. 268 (1998). In support of his assertion that he was exposed to herbicide agents in Okinawa, the Veteran cites to several prior Board decisions for other veterans in which the Board granted service connection based on exposure to herbicide agents in Okinawa. See Veteran submitted exhibits 7, 8, 9, 19. One of the decisions by the Board was also cited in a news article in the Japan Times, which the Veteran submitted to show that the Board had generally conceded the presence of herbicide agents on Okinawa. It must be noted, however, that Board decisions are not precedential, and the undersigned is not bound by the determination of another Veterans Law Judge in another case for another veteran, based on entirely different evidence. 38 C.F.R. § 20.1303. Each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants, even those who may appear to be similarly situated. Id. Simply stated, the Board decision in this claim, as in every other claim, rests on the specific facts of the case at hand. McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). Furthermore, the present appeal can be distinguished from the earlier cases before the Board because the record in the present case contains credible and competent evidence against the presence of herbicide agents on Okinawa that outweighs the Veteran’s uncorroborated reports, based on research of pertinent government records that were not cited in the prior Board decisions, and that may not have even been available to the Board at the time those decisions were rendered. The Veteran has also submitted several articles from the Japan Times and the Asia Pacific Journal recounting interviews from various veterans who served in Okinawa, Japan speculating whether they were exposed to herbicide agents through the handling/burying of unidentified barrels and spraying the perimeter and airway strip for vegetation control. See Veteran submitted exhibits 1, 2, 4, 5, 6, 12. None of the interviewees were proven to be competent to identify herbicide agents or had direct knowledge that they were handling Agent Orange or any other herbicide agents. Instead, the interviewees were simply speculating, and could provide no additional identifying information beyond the barrels having an orange stripe. The speculative nature of these articles is far outweighed by the April 2016 Compensation Service evidence proving (1) that herbicide agents were not used, tested, or stored in Okinawa; and (2) that commercial herbicides—not tactical “herbicide agents” set forth in 38 C.F.R. § 3.307(a)(6)(i)—were used on all military bases worldwide for basic maintenance activities, such as range management, brush clearing, and weed killing. Additionally, many of the articles reference veterans who served in Okinawa at different times than the Veteran, and thus; even if their statements were probative—which they are not—they would not support the Veteran’s claims. In one of the articles, a veteran reported that several officers became sick and damaged their feet after being exposed to herbicide agents in a creek. There is no evidence that this veteran has medical training, or any other expertise necessary to pinpoint the etiology of a complex medical matters, such as sickness or rash due to herbicide agents. See Veteran submitted exhibit 2; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This story is not competent evidence in this determination. In exhibit 3 submitted by the Veteran, a separate veteran who served in Okinawa 3-4 years after the Veteran told the Asia-Pacific Journal that he recalled stocks of defoliants present on the installation and remembered typing up a request to dispose of 12 barrels “containing the chemicals.” The Veteran does not indicate how he knew that the barrels were specifically any of the herbicide agents set forth in 38 C.F.R. § 3.307(a)(6)(i), or other commercial herbicides/chemicals. Moreover, the DOD has specifically denied that tactical “herbicide agents” were ever present in Okinawa. Given these inadequacies, the Board declines to find the cited Japan Times and Asia-Pacific Journal articles any weight in this determination. The Veteran has submitted a September 8, 1966 Air Force document entitled, “Report of Staff Visit (Philippines, Taiwan, and Okinawa) wherein item #8 lists recommendations for safe handling of “herbicides” in the context of pest control; not defoliation. See Veteran submitted exhibit 10. Moreover, this document does not distinguish between commercial herbicides and tactical “herbicide agents” under 38 C.F.R. § 3.307(a)(6)(i). Furthermore, it does not affirmatively establish that Agent Orange, or other herbicide agents were present in Okinawa. This evidence is not probative and does not support the Veteran’s claims. The Veteran has submitted a copy of declassified pages from “Project Agile” for the proposition that the United States had begun testing deployment of herbicide agents in 1962 and 1963. See Veteran submitted exhibit 14. This article has no probative value in the present matter because it does show the storage, use, or testing of herbicide agents in Okinawa during the Veteran’s service and does not prove he was exposed to such agents during active duty. The Veteran submitted an organizational history of the 267th Chemical Company—which served in Okinawa from 1962 to 1965, prior to the Veteran’s active duty service—for the proposition that “the unit was devoted to managing receipt and storage of chemicals in the “Red Hat area” on Okinawa.” See Veteran submitted exhibit 16. This document is not probative for a variety of reasons. First, it vaguely references the presence of chemicals in Okinawa, but provides no indicia that any of the chemicals were Agent Orange, or any other tactical “herbicide agent.” Second, it is from a period prior to the Veteran’s tour of active duty service. Lastly, the DOD has explicitly confirmed that neither Agent Orange or any other tactical “herbicide agent” was ever used, tested, or stored in Okinawa. See April 2016 Compensation Service evidence. The Veteran provided an excerpt from the 2003 report “An Ecological Assessment of Johnston Atoll” and cited pages 4 and 7 for the proposition that the U.S. Air Force and Army stored Agent Orange in Okinawa. See Veteran submitted exhibit 15. The Veteran attributed this report to the U.S. Army; however, it was actually published by Washington Group International—a private entity. The Board does not find this report to be probative as it is unclear where the authors received their information and they did not provide citations to their source material. The Veteran has submitted exhibits 20, 21, and 24 for the proposition that soil testing in Okinawa has confirmed the presence of dioxin and/or other markers suggesting the presence of herbicide agents. These exhibits are not the findings of scientific studies, but are instead internet articles containing summaries, general statements from scientists, and editorial commentary regarding the possible presence of herbicide agents in the soil of Okinawa. There is no indication from the record that the research findings or generalized statements discussed in these internet articles were ever published in medical treaties or peer-reviewed medical journals, where the researcher’s techniques and findings would be subject to intense scientific scrutiny by recognized experts in the field of environmental toxicology and chemistry. Moreover, the more competent evidence from the DOD confirms that tactical “herbicide agents” were never present in Okinawa. The Veteran has also submitted a September 1971 Army Report, entitled “Historical, logistical, political and technical aspects of the herbicide/defoliant program” as well as a newspaper article confirming the existence of the Army Report. See Veteran submitted exhibits 22 and 23. The Veteran cites a single sentence stating, “herbicide stockpiles elsewhere in PACOM-US [Pacific Command] government restricted material Thailand and Okinawa (Kadena)” as positive proof that herbicide agents were stored in Okinawa. First, the use of the term herbicide in this document is ambiguous, at best. As consistently noted throughout this decision, there is a distinction between herbicides and “herbicide agents” as defined in 38 C.F.R. § 3.307(a)(6)(i). Even the April 2016 Compensation Services evidence distinguishes “herbicide agents” under the presumptive service connection regulations from commercial herbicides, which were used for routine base maintenance activities, such as range management, brush clearing, and weed killing, and are chemically different from the “herbicide agents” referenced by the law. Moreover, even if this Army Report were discussing “herbicide agents”—which the evidence does not convincingly suggest—there is no indication from the report that these “stockpiles” were present during the Veteran’s period of active duty or that he was actually exposed. Given the above, this evidence is not probative in this determination. The Veteran submitted exhibits 13, 17, and 18, which includes the December 15, 1961 Air Force Memorandum discussed in the August 2018 JMPR, for the purposes of establishing that the U.S.N.S. S.O. Bland visited Okinawa in 1962—well before the Veteran’s period of active duty—and unloaded chemical materials. The Japan Times article citing and quoting Michelle Gatz for her discovery of the U.S.N.S. S.O. Bland’s deck logs makes severe inferential leaps, without independent corroboration, that the “classified cargo” unloaded in Okinawa was, in fact, Agent Orange or other tactical “herbicide agents.” See Veteran submitted exhibit 13. In this article, Ms. Gatz merely provides her subjective, and unverified, opinion that the U.S.N.S. S.O. Bland was delivering chemicals that could deprive enemy soldiers of jungle cover and crops. Ms. Gatz has no basis for her beliefs beyond pure speculation, which is not enough to prove that herbicide agents were delivered to Okinawa in 1962; especially considering probative evidence of record from the DOD confirming that herbicide agents were never used, stored, or tested in Okinawa. Although the U.S.N.S. S.O. Bland stopped in Okinawa in February 1962, the Board’s independent assessment of the provided deck logs from the ship establishes that there is nothing in this document that supports the allegation that this vessel ever transported Agent Orange, or any other tactical “herbicide agent” to or through Okinawa. See Veteran submitted exhibit 18. This conclusion is further bolstered by the April 2016 Compensation Service evidence which establishes that “Okinawa was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi to South Vietnam via merchant ships.” As to the declassified December 15, 1961 Air Force Memorandum, the Board disagrees with the August 2018 JMPR’s characterization of this document as “favorable evidence,” as it does not, in any way, establish that the Veteran was actually exposed to Agent Orange, or any other tactical “herbicide agent” during his service in Okinawa. This memorandum merely recommended that chemicals for Operation Ranch Hand be shipped and delivered to the United States Operations Mission as “agricultural material” if deemed necessary by the State Department or the U.S. Military Assistance Advisory Group. If such cover was not deemed necessary, normal military assistance program procedures would apply. Nothing in the memorandum alludes to shipments of herbicide agents via Okinawa. This evidence is irrelevant to determining whether the Veteran was actually exposed to herbicide agents during his active duty service in Okinawa, and as such, it is not probative. As raised in the August 2018 JMPR, the Board has reconsidered the sworn lay statement of J.S. but finds this statement to be of de minimis evidentiary value. See Veteran submitted exhibit 25. In this lay statement J.S. alleges that he served in Okinawa from 1968 to 1971 and unloaded barrels marked with orange stripes “that were known to be full of Agent Orange.” He further alleges that the chemicals from these barrels were used to spray weeds around walkways and equipment and were added to diesel generator fuel tanks. J.S. is competent to report his memories of using chemicals in the fashion he describes, as these come from the Veteran’s personal recollection of his life events. See Layno, 6 Vet. App. at 470. Even though his statement alleges he was a nuclear/biological/chemical warfare instructor during service, there is no indication of what training he underwent, or the exact nature of his duties, enough to allow the Board to adequately determine whether he is competent to identify or distinguish the herbicide agents listed in 38 C.F.R. § 3.307(a)(6)(i). Nevertheless, J.S. did not provide any explanation as to how he knew that the chemicals he worked with were actually Agent Orange or any other tactical “herbicide agent.” He simply provided that the barrels “were known to be full of Agent Orange,” but did not provide any meaningful explanation as to the source of that knowledge. The probative value of this statement is negatively impacted by this evidentiary gap; and outweighed by the competent and credible evidence DOD provided to the Compensation Service, which affirmatively establishes that Agent Orange was never used, tested, or stored in Okinawa. See April 2016 Compensation Service evidence. Given the comprehensive analysis above, the Board finds there is no probative evidence supporting a finding that the Veteran was exposed to herbicide agents during his active duty service. The Veteran is competent to report on what he purportedly observed, but the Board places greater probative value on the actual research conducted by the government, based on historical documents, which indicates that tactical “herbicide agents” were not present in Okinawa during the Veteran’s period of active service, and suggests that the chemicals the Veteran witnessed were likely commercial herbicides that do not fall under the regulations governing tactical “herbicide agents” at 38 C.F.R. § 3.307(a)(6)(i). The Veteran’s reports of what he observed do not confirm the presence of tactical “herbicide agents” such that exposure to such herbicide agents is warranted on a presumptive basis. As such, the Veteran’s assertion that he was exposed to tactical “herbicide agents” is based on supposition and is contrary to the more probative evidence of record based on actual government records, which conclude he was not exposed to herbicide agents during his active duty service in Okinawa. Finally, the Veteran’s service treatment records are absent for evidence of in-service treatment for a non-Hodgkin’s lymphoma or diabetes mellitus, type II. While the file contains medical opinions stating the Veteran’s claimed disorders are due to exposure to tactical “herbicide agents” in service, actual exposure to herbicide agents has not been shown, and no other etiological relationship to service has been advanced. Therefore, the record does not demonstrate that the Veteran’s non-Hodgkin’s lymphoma and/or diabetes mellitus, type II, had their onset during his active service or are otherwise etiologically related to his active service on a direct basis. See Combee, 34 F.3d at 1043. In summary, there is no competent, probative evidence of record linking the Veteran’s non-Hodgkin’s lymphoma and/or diabetes mellitus, type II, to his active service, to include the claimed exposure to herbicide agents. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for non-Hodgkin’s lymphoma and diabetes mellitus, type II. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for an Acquired Psychiatric Disability other than PTSD The Veteran contends that he has anxiety disorder that is secondary to his non-Hodgkin’s lymphoma. The Veteran withdrew his Court appeal seeking entitlement to service connection for PTSD in the August 2018 JMPR granted by the Court and thus, the February 2018 Board decision denying entitlement to service connection for PTSD has become final. The evidence of record does not reasonably establish, and the Veteran has not alleged, that he has experienced any other acquired psychiatric disabilities during the appellate period aside from anxiety. Specifically, the Veteran contends that his anxiety disorder should be service-connected as secondary to his non-Hodgkin’s lymphoma. See Correspondence received May 2015. The Veteran contends his anxiety disorder, not otherwise specified (NOS) is caused by his non-Hodgkin’s lymphoma. Since the Veteran does not allege direct service connection, nor does the record raise this entitlement, the Board will restrict its analysis to secondary service connection only. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board does not err in failing to discuss service connection on a direct basis when neither appellant nor record raises the theory). The August 2018 JMPR did not indicate that the Board’s determination to limit its analysis to a secondary theory of entitlement was faulty, and the Veteran has not provided any evidence or argument since the August 2018 JMPR, which expands the claim beyond a secondary theory of entitlement. As discussed above, the Board has denied the Veteran’s claim of entitlement to service-connection for non-Hodgkin’s lymphoma. Secondary service connection is warranted where a disability is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Since service connection for non-Hodgkin’s lymphoma has been denied, a threshold legal requirement for establishing secondary service connection is not met, i.e., the Veteran is not service-connected for the disability that is alleged to have caused or aggravated the disability for which service connection is sought (anxiety, NOS). Accordingly, the claim seeking entitlement to service connection for an anxiety disorder, NOS is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 and implementing regulations imposes obligations on VA to provide veterans with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326(a); Dingess v. Nicholson, 19 Vet. App. 473, 478 (2006). Here, the duty to notify was satisfied by letters to the Veteran dated in February 2011 and March 2011, which adequately provided notice of the elements necessary to substantiate the claim. Additionally, the regulations pertinent to this decision provided to the Veteran in the June 2013 Statement of the Case and the November 2017 Supplemental Statement of the Case. Consequently, the Board finds that VA’s duty to notify has been satisfied and that the Veteran has had adequate notice of the pertinent laws governing this appeal. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes service treatment records, VA treatment records, private treatment records, statements in support of the claim by the Veteran, other lay statements, and evidence/argument submitted by his attorney. In the May 2015 correspondence, the Veteran’s attorney requested that the VA obtain evidence regarding “Operation Red Hat” referenced in past Board decisions for other veterans (Veteran submitted exhibit 8). There is no allegation that the Veteran’s unit served in Operation Red Hat and the government has already verified that herbicide agents were never used, stored, or tested in Okinawa. Given this fact, the Board finds no basis upon which to defer adjudication of the claims to obtain irrelevant records pertaining to Operation Red Hat. The Veteran has not been provided a VA examination in connection with his claims seeking entitlement to service connection for diabetes mellitus, type II and non-Hodgkin’s lymphoma. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, and 3.317, manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In this case, there is no indication that the claimed disabilities or symptoms may be associated with an established event, injury, or disease in service. Specifically, the Veteran contends that his non-Hodgkin’s lymphoma and diabetes mellitus, type II, are causally related to in-service exposure to herbicide agents. As discussed above, there is no credible evidence that the Veteran served in an area in which exposure to herbicide agents may be presumed, or that he was actually exposed to herbicide agents during active duty service. Therefore, a VA examination is not required in this case. The August 2018 JMPR did not identify any deficiencies regarding VA’s duty to notify or VA’s duty to assist the Veteran in developing his claims. As set forth above, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the claims adjudicated in this decision. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel