Citation Nr: 20006394 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 18-49 105 DATE: January 27, 2020 THE ISSUE Entitlement to service connection for leukemia, to include as due to herbicide agent exposure. ORDER Entitlement to service connection for leukemia, to include as due to herbicide agent exposure is granted. FINDINGS OF FACT The Veteran has a diagnosis of leukemia, and the evidence is at least in equipoise as to whether he was exposed to herbicides agents during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for leukemia have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing sitting in West Palm Beach, Florida. A transcript of the hearing is of record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for leukemia, to include as due to herbicide agent exposure is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307 (a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e). Leukemia is among the diseases listed for which presumptive service connection is available based on in-service herbicide exposure. Additionally, VA regulations recognize additional methods of establishing in-service exposure to herbicides. Notably, a Veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, as determined by the Department of Defense ("DOD,") shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iv); 76 Fed. Reg. 4,245 - 4,247 (January 25, 2011). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. Whenever there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Here, the Veteran is seeking service connection for leukemia, contending that his condition was caused by his exposure to herbicide agents. Initially, the Board notes that the Veteran has been diagnosed with leukemia. See May 2015 Private Treatment Note. Therefore, the Board finds the Veteran has satisfied the first element of service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Moreover, and as noted above, the Board finds that leukemia is among the diseases listed in 38 C.F.R. § 3.309 (e) for which presumptive service connection is available based on in-service herbicide exposure. Thus, the only remaining question is whether the Veteran was exposed to herbicide agents while in service. The Board acknowledges the Veteran's assertion that he was exposed to herbicides while on active duty service in Korea. Specifically, in his NOD, the Veteran contended that was a company commander and that some of the troops he went to check on were stationed along the DMZ. In a July 2015 Statement in Support of Claim, the Veteran again wrote that he was a company commander and that “one section of my company was attached to support the 2nd infantry division north of the Imjin River very close to the DMZ.” The Veteran noted that he “personally traveled to this section” to check on these troops. A subsequent June 2018 Statement in Support of Claim, the October 2019 VA Form 9, and at the December 2019 Board hearing, the Veteran consistently repeated substantially the same assertions. In the December 2019 Board hearing, the Veteran testified, under oath, that he was stationed at Camp Casey in South Korea from August 1967 to September 1968 and that he had gone to the DMZ to inspect troops three times. The Board notes that the Veteran’s DD-214 confirms that he was stationed in Korea during the relevant time period. See DD-214. The Board notes that development was conducted through the Defense Personnel Records Information Retrieval System (DPRIS) in an effort to confirm whether the Veteran or members of his unit were exposed to herbicides. The DPRIS responded that the Veteran was a part of the 7th Infantry Division, and that the unit was located at Camp Casey, South Korea, approximately thirteen miles from the DMZ. The DPRIS further noted that the history does not document the use, storage, spraying, or transportation of agent orange in the vicinity of Camp Casey, nor does the history mention or document any specific duties performed by the unit members along the DMZ. Likewise, the Veteran's military personnel records are silent as to the Veteran's duties while in Korea. (Continued in next page.) However, the Board has considered the evidence of record, and finds the Veteran has consistently and credibly reported that, while stationed in Korea, he traveled to the DMZ several times. Given the totality of the evidence, to include the Veteran's consistent and credible statements regarding trips to the DMZ, the proximity of Camp Casey to the DMZ, and the lack of contradictory evidence, the Board finds that the evidence is in relative equipoise as to whether the Veteran was exposed to herbicides in the Korean DMZ during the relevant time period, and thus, determined that the Veteran has established the he was exposed to herbicides in service. Given that the Veteran has established herbicide exposure in service, and that the record reflects a diagnosis of leukemia, a presumptive disease, during the pendency of the appeal, the Board finds service connection for leukemia is warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.