Citation Nr: 20042408 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 20-25 130 DATE: June 23, 2020 REMANDED Entitlement to service connection for Non-Hodgkin’s lymphoma is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from February 1960 to January 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for Non-Hodgkin’s lymphoma is remanded. The Veteran contends that he was at Port Naha, where he along with others staged vehicles at the motor pool and recalled seeing barrels offloaded from ships in the port as well as in storage near the motor pool, which he believes could have exposed him to defoliants such as Agent Orange. See Correspondence (May 2019). He detailed that, from October 1960 to January 1963, he embarked and returned to Port Naha on six different occasions. Id. He stated that he was deployed to White Beach, where, he stated, evidence of Agent Orange has been found. Id. He stated that during field exercises in Camp Hanson, Camp Schwab and Jungle Warfare Training Center, he was exposed to defoliants that were tested there. Id. Given the evidence of record, the Board will construe pleadings liberally and consider theories of entitlement that are independently raised by the record, even if they were not specifically asserted by the Veteran. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); 38 C.F.R. § 20.202. To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). Initially, the Board notes that the Veteran has a diagnosis of Waldenstroms macroglobulinemia, a type of Non-Hodgkin’s lymphoma, as shown in a July 2011 private treatment note. See Medical Treatment Record - Non-Government Facility (January 2018). The Veteran’s service treatment records (STRs) show notations pertaining to the lymphatic system. Specifically, a March 30, 1969 STR shows a diagnosis of tonsillitis, acute, organism unknown, with physical evaluation revealing enlarged injected tonsils with purulent patches and enlarged cervical lymph nodes. The Veteran was admitted that day and released on April 1, 1960 with benign pharynx except for small patches of exudate. He was discharged on Bicillin. A December 1963 STR shows that the Veteran had had cystic mass in skin of the neck on right side for the past 6 months and was diagnosed with epidermal inclusion cyst, clinically from right side of the neck. The Board observes that Non-Hodgkin’s lymphoma is a cancer that originates in the lymphatic system wherein tumors develop from lymphocytes - a type of white blood cell. https://www.mayoclinic.org/diseases-conditions/non-hodgkins-lymphoma/symptoms-causes/syc-20375680. See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). Signs and symptoms of Non-Hodgkin’s lymphoma may include: painless, swollen lymph nodes in the neck, armpits or groin; abdominal pain or swelling; chest pain, coughing or trouble breathing; persistent fatigue; fever; night sweats; and unexplained weight loss. Post-service, VA treatment records in November 2013 show that the Veteran had a slightly enlarged lymph node on the right after being diagnosed with Waldenstroms macroglobulinemia. See CAPRI (October 2017). While it is possible that the observations of enlarged cervical lymph nodes and cystic mass in skin of the neck pertain only to the in-service diagnosis of tonsillitis rather than the Veteran’s subsequent lymphoma, medical guidance is required before the Board can make a determination on the Veteran’s claim. With regard to the Veteran’s reported in-service exposures as the cause of his Non-Hodgkin’s lymphoma, the Veteran does not allege, and his service personnel records do not show, relevant service in the Republic of Vietnam, along the Korean DMZ, or at Royal Thai Air Force Bases. As such, although Non-Hodgkin’s lymphoma is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e), the Veteran cannot rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to substantiate his claim. Nonetheless, the Veteran may still establish service connection by proving that he was actually exposed to herbicide agents. Once exposure is established, the presumptive provisions for the diseases listed in 38 C.F.R. § 3.309(e), including Non-Hodgkin’s lymphoma, become applicable. Even if presumptive provisions are not for application, service connection may still be established on direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). See also, Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). In this case, the Veteran’s service personnel records (SPRs) show that he served in Camp Schwab, Camp Hansen and Fuji McNair in Japan. He served in Battery C, 1st Battalion, 12th Marines, 3rd Marine Division (Rein), and embarked on USS Breckenridge in San Diego arriving in Naha, Okinawa in September 1960. In October 1960, he embarked on USS Vernon County, in Naha, Okinawa, and arrived at Numazu Beach, Japan. In March 1961, he embarked on USS Terrell County at Numazu Beach and arrived at Naha, Okinawa. In September 1961, he boarded USS Tortuga at White Beach, Okinawa. He sailed from White Beach, Okinawa, to Subic Bay, Philippines; he sailed to China on USS Monticello, and sailed on USS Alamo, USS Clymer, USS Whitefield County, USS Bomstock at White Beach in Japan. USS Tortuga. He embarked on USS Tom Green County at Numazu, Japan on January 26, 1962, and arrived at Naha, Okinawa, on January 30, 1962. In January 1963, he embarked on board USNS Mitchell at Okinawa to return to San Diego. The Board finds that the Veteran has provided specific information to refer the claim to the JSRRC again to attempt to corroborate the Veteran’s claimed exposure. Significantly, the initial inquiry was limited (1) in terms of locations, where the Veteran served, (2) due to absence of inquiries as to the multiple ships, on which he embarked and their history, and (3) to inquiries as to herbicide exposure without any inquiries as to defoliants used in the locations and on the ships, where the Veteran served. The Veteran provided a specific time frame and location of exposure, and his SPRs indicate his location and unit information. Further, VA’s duty to assist is not bound by the JSRRC’s 60-day requirement, and the fact that multiple record searches may burden JSRRC employees does not make those efforts futile. Gagne v. McDonald, 27 Vet. App. 397 (2015). Here, in November 2017, the RO asked the Veteran to send additional information about his claimed exposure to herbicide agents to attempt to verify the exposure to herbicide agents. In January 2018, the Veteran submitted private treatment records showing a diagnosis of Non-Hodgkin’s lymphoma. In his June 2018, the Veteran had stated that research showed that Agent Orange was stored and sprayed at Camp Hansen, Camp Schwab and in Jungle Warfare Training Center in Port Naha in Okinawa during his service in the Marine Corps between 1960 and 1963. Upon RO request, a February 2019 response from Compensation Service of the Department of Defense (DoD) in regard to the Veteran’s purported herbicide exposure noted that commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i), and as such the claim should be referred to the Joint Services Records Research Center (JSRRC). No follow-up request has been sent to JSRRC. Notably, after the RO sent a February 2019 letter requesting additional evidence to seek further assistance from the JSRRC, the Veteran responded in May 2019 with a letter detailing his service locations, including multiple ships and their locations, and dates, as well as an article. While additional research was done to determine if Agent Orange exposure could be conceded as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23, including a February 2020 Memorandum, VA must submit multiple 60-day inquiries to the JSRRC sufficient to address the entire period of time identified by the Veteran and his locations listed in SPRs based on the holding in Gagne. Such has not been conducted in this case. With regard to the article the Veteran submitted concerning the military’s alleged storage of Agent Orange on Okinawa in the 1960’s and 1970’s. According to the article, high rates of cancers among employees at Camp Schwab have been attributed to defoliants that were ordered to be prayed in the 1960s and 1970s. The article also provided that pesticides were buried at Camp Hansen, and that another defoliant – Agent Pink - was also found in Okinawa. See Correspondence (May 2019). In response to this evidence, the RO conducted an investigation discussed above that is incomplete as no appropriate inquiries have been conducted. Notwithstanding the results of the RO investigation, the Board finds that the claims file contains evidence showing that the Veteran could have been exposed to herbicide agents or defoliants during his service in Japan and aboard multiple ships. The newspaper article submitted by the Veteran mentions a series of reports released by the DoD in September 2015 under FOIA, which detail the storage of herbicide agents on Okinawa in the 1960’s and 1970’s. Although several documents in the claims file reference these reports, the Board notes that they are not actually included in the record. Given that the DoD reports address the issue of herbicide contamination on Okinawa, which may overlap with the time-frame that the Veteran was stationed there and potentially contradicts the findings of the April RO investigation, the Board concludes that a remand is warranted to acquire these records. While the Veteran’s oncologist has stated, including in July 2017, that the Veteran’s Non-Hodgkin’s lymphoma is related to service, this opinion was based on the assumption that the Veteran was exposed to Agent Orange or other herbicides during his service in Japan. However, it has not yet been established that the Veteran has been exposed to herbicides. Dr. S.B. who created that record concluded that the Veteran was exposed to herbicide agents while on active duty based simply on the Veteran’s self-reported history, and a medical evaluation that is merely a recitation of a Veteran’s self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). The Veteran also cited to a prior Board decision for another veteran, which purportedly set precedence on exposure to herbicides in Okinawa. The Board notes that Board decisions are nonprecedential in nature and that each case presented to the Board will be decided on the basis of the individual facts of the case. 38 C.F.R. § 20.1303. Therefore, just because the Board has in prior decisions found actual exposure to herbicide agents in Japan, the Board is not required to reach a similar result in this case. Nonetheless, the Board finds that there is sufficient evidence of record to trigger VA’s duty to assist to provide the Veteran with a VA examination for his Non-Hodgkin’s lymphoma. See Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). Given that the Veteran has not been afforded a VA examination addressing the nature and etiology of his Non-Hodgkin’s lymphoma, remand is warranted so that a VA examination and medical opinion may be provided to determine the nature and etiology of the Veteran’s Non-Hodgkin’s lymphoma. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lastly, the Board finds that there are outstanding private treatment records, including from Dr. S.B., as the record shows that the Veteran has been receiving treatment for his Waldenstroms macroglobulinemia since 2011 to the present, but the Veteran has submitted sparse records and none recently. However, VA treatment records continue to show that the Veteran is receiving ongoing treatment with Dr. S.B. These should be obtained on remand. The matter is REMANDED for the following action: 1. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents or defoliant through official sources to include the JSRRC. If more details are needed, contact the Veteran to request the information. (a.) Consider the period of service in Japan from October 1960 to January 1963, including his service aboard multiple ships listed above and at Camp Hansen, Camp Schwab and Fuji McNair, amongst others, and claimed jungle warfare training. Although this period exceeds 60 days, VA is required to make as many requests as are necessary to encompass the entire reported period, unless exposure is shown during a previously submitted 60-day period. (b.) If there is still insufficient information to verify exposure to herbicide agents or defoliant, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the in-service herbicide agent or defoliant exposure. 2. Obtain the DoD reports issued in response to the September 2015 FOIA request from the U.S. Army and JSRRC, or any other appropriate source(s). Document all requests for information as well as all responses in the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for Non-Hodgkin’s lymphoma or symptoms thereof prior to his formal diagnosis, to include those for Dr. S.B. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. Obtain a VA medical opinion from an appropriate medical professional to determine the nature and etiology of his Non-Hodgkin’s lymphoma. Address whether it is at least as likely as not (50 percent or greater probability) (a) had its onset in service, (b) manifested within one year after service, or (c) is otherwise etiologically related to in-service injury or disease to include documented in-service findings involving the lymphatic system and, ONLY IF CONCEDED BY VA, exposure to herbicides or defoliants. The opinion should reflect consideration of the STRs showing atypical lymphocytes and discuss what, if any, relationship exists between the findings of tonsillitis, enlarged cervical lymph nodes and cystic mass in skin of the neck in service and the subsequent development of Non-Hodgkin’s lymphoma, if any. 5. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.