Citation Nr: 20039977 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-22 651 DATE: June 11, 2020 ORDER Service connection for lymphomatoid papulosis is granted. FINDINGS OF FACT 1. The Veteran had in-country service in Vietnam and is presumed to have been exposed to herbicides. 2. Lymphomatoid papulosis is etiologically related to exposure to Agent Orange during active service. CONCLUSION OF LAW The criteria for service connection for lymphomatoid papulosis are met. 38 U.S.C. §§ 1110, 1112, 1131, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Army from December 1967 to December 1969, and active duty service in the United States Air Force from December 1969 to July 1989. In September 2018, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. In May 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including malignant tumors, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Veterans who 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 to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). As the Veteran's service personnel records, to include his DD 214, reflect that he served in the RVN from May 1968 to May 1969, his exposure to Agent Orange is presumed. 38 C.F.R. § 3.307 (a)(6) (2019). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ, in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814(c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, a veteran must have one of the diseases enumerated in § 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309 (e), relating to presumptive service connection due to exposure to Agent Orange, a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a disability, which is not included in the list in 38 C.F.R. § 3.309 (e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for lymphomatoid papulosis The Veteran contends that his current skin condition, lymphomatoid papulosis, is related to exposure to Agent Orange during active duty in Vietnam. Because the Veteran served in Vietnam, his exposure to herbicides is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). Unfortunately, lymphomatoid papulosis is not listed among the conditions subject to presumptive service connection on the basis of herbicide exposure. As such, service connection is not warranted on a presumptive basis based on exposure to herbicides in Vietnam. However, as noted above, a Veteran may still establish service connection on a direct basis, if the relevant requirements are met. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The medical evidence of record shows the Veteran has been diagnosed with lymphomatoid papulosis. See private treatment records from the Wesley Medical Center dated in 2013, February 2014 VA Skin Diseases examination and private treatment records from D. K. K., MD. The Veteran’s private physician, D. K. K., MD opined that it is at least as likely as not that the Veteran’s diagnosed lymphomatoid papulosis was caused by exposure to Agent Orange. In rendering her opinion, she noted that the Veteran has no known history of exposure to risk factors that may pose a risk for lymphomatoid papulosis, other than exposure to Agent Orange, and that there is no known family history of the disease for the Veteran. See March 2014 statement from D. K. K., MD. In accordance with the Board’s May 2019 remand, an October 2019 VA examiner also submitted an opinion. The VA examiner opined that the claimed lymphomatoid papulosis was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran has a rare disease, which is more than just a “skin condition.” Rather, it is really a disease of a line of Lymphocytes that attacks the skin, but that also has a potential to turn into a variety of malignant conditions involving abnormal, cancerous lines of Lymphocytes (B-cell leukemia, Hodgkin's and non-Hodgkin's lymphomas, Kaposi's sarcoma, etc.). The examiner noted further that this is not a cancerous condition as such or as yet, but it must be considered as pre-cancerous. He also noted that lymphomatous papulosis is not included in the VA list of cancers linked to Agent Orange, but the line that separates this condition from a full-blown cancerous condition is very thin. On this ground, the examiner concluded that the diagnosed lymphomatous papulosis is related to exposure to Agent Orange. There is no contrary medical opinion of record. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence shows that the Veteran’s currently diagnosed lymphomatoid papulosis was caused by his exposure to Agent Orange during active duty in Vietnam, and service connection is warranted. 38 U.S.C. § 5107 (b) (2012). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.