Citation Nr: 20007699 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-35 028 DATE: January 29, 2020 ORDER The claim for service connection for Non-Hodgkin’s Lymphoma, to include as secondary to Agent Orange exposure is denied. FINDING OF FACT 1. The Veteran did not have service on land or in the waters offshore of the Republic of Vietnam during the Vietnam War era, including the inland waterways, and is not presumed to have been exposed to an herbicide agent during military service, nor was he otherwise exposed to an herbicide agent during military service. 2. The Veteran’s Non-Hodgkin’s Lymphoma, to include as secondary to Agent Orange exposure did not have its onset in service and is not otherwise related to service, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for Non-Hodgkin’s Lymphoma, to include as secondary to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to November 1975. The Veteran contends that he is entitled to service connection for Non- Hodgkin’s lymphoma due to his exposure to herbicide agents in service while servicing B-52 aircrafts which had traveled to Vietnam. In a January 2017 statement to VA, the Veteran indicated that he was a crew chief on B-52 aircrafts, and that “I know for a fact they flew so low and went through clouds of Agent Orange during their service in Vietnam.” In a June 2017 statement the Veteran indicated that Agent Orange residue clung to the outside of B-52 aircrafts and that there was no aircraft wash-down between landing and his work on them. The Veteran asserts that the presumption associated with those who serviced C-130 aircrafts should be afforded to those who serviced B-52 aircrafts. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to the general rule for service connection, additional laws and regulations are applicable to claims of non-Hodgkin’s lymphoma, due to herbicide exposure including Agent Orange exposure. 38 C.F.R. § 3.309(e). VA has determined that a positive association exists between exposure to herbicides and the subsequent development of non-Hodgkin’s lymphoma, among other diseases. Service connection may be granted on a presumptive basis for non-Hodgkin’s lymphoma even though there is no record of such disease during service, if the disease manifest to a compensable degree any time after service, in a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The primary question for the Board is whether the Veteran was actually exposed or can be presumed to have been exposed herbicides during service. The Board finds the probative and competent evidence of record does not support a finding that the Veteran was exposed to herbicides and is therefore not entitled to service connection on a direct or presumptive basis. The Veteran has not alleged that his Non-Hodgkin’s lymphoma was first manifested during active duty. Service treatment records are silent for any diagnosis or complaints related to cancer or associated signs and symptoms. Additionally, VA treatment records indicate that the Veteran manifested symptoms of non-Hodgkin’s lymphoma approximately one-year prior to his diagnosis in March 2016, and more than 40 years after his separation from service. Therefore, direct service connection based on manifestation in service is not warranted. The records do not show, nor does the Veteran contend, that he served in-country Vietnam or otherwise set foot on the landmass of Vietnam. The Veteran’s service personnel records indicate service at an Air Force Base in California. Additionally, the Veteran’s Certificate of Release or Discharge from Active Duty (DD-214) shows no indication of Vietnam service or any foreign service. Presumptive service connection as an herbicide exposed Veteran in Vietnam is therefore not be applicable. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). The Veteran claims service connection on the basis that the B-52 aircrafts he worked on were exposed to herbicide agents which he was exposed to during his maintenance of said aircrafts. 38 C.F.R. § 3.307(a)(6)(v) provides that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. The provisions of 38 C.F.R. § 3.307(a)(6)(v) with regard to the presumption of exposure to herbicide agents in connection with C-123 aircraft is not applicable in this case. As noted above, the record indicates the Veteran served on an Air Force Base in California and worked on B-52 aircrafts. With regard to the Veteran’s contention that he was exposed to Agent Orange through contact with aircrafts, he is not shown to have regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent as defined by the regulation and as such the presumptive service connection under 38 C.F.R. § 3.307(a)(6)(v) is not warranted. Notwithstanding the foregoing, the Veteran may still establish service connection on a different basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Here, there is evidence that the Veteran had a disability during the period on appeal, namely Non-Hodgkin’s lymphoma. However, the preponderance of the evidence is against a finding that he was exposed to herbicides or any other event during service which caused his Non-Hodgkin’s lymphoma. In written statements, the Veteran indicated that he was exposed to Agent Orange because the aircrafts he worked on during service flew through clouds of Agent Orange, the residue clung to the planes, and there was no aircraft wash-down prior to his work on them. The Veteran did not provide any supporting documentation or evidence to support his statements. The Veteran did provide a website article entitled, “An Agent Orange Christmas Thailand,” which discusses the use of Agent Orange in Thailand at U-Tapao Airbase and B-52 Stratofortress Heavy Bombers, among other aircrafts, that operated out of the Airbase. While this article supports the presence of B-52 aircrafts in Thailand and the use of Agent Orange in Thailand, the record does not indicate that the Veteran had service in Thailand or at U-Tapao Airbase. The article provides no support for the Veteran’s statements that he was exposed to Agent Orange or that the B-52 aircrafts he serviced carried Agent Orange residue. Therefore, the Board does not assign any probative value to the statements regarding his exposure to herbicide agents. The Board acknowledges the Veteran’s assertions that his non-Hodgkin’s lymphoma is the result of his military service. However, the Veteran has not demonstrated that he is competent to make such an assertion. He has not presented any probative evidence which corroborates his statement that he was indeed exposed to herbicide agents and such assertion is beyond the scope of his personal knowledge and powers of observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, he has not presented any competent evidence which would otherwise connect his cancer to service. As such, the Board affords the Veteran’s statements regarding a link between his current non-Hodgkin’s lymphoma and his military service no probative weight. In sum, there is no competent evidence which establishes that the Veteran was exposed to Agent Orange during service on a direct on a presumptive basis. Accordingly, service connection for non-Hodgkin’s lymphoma is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. I. Sims, 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.