Citation Nr: 21001641 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-43 535 DATE: January 11, 2021 ORDER Entitlement to service connection for non-hodgkin's lymphoma to include as secondary to herbicide agent exposure and environmental hazards is granted. FINDING OF FACT The preponderance of the probative evidence of record establishes that the Veteran’s non-Hodgkins lymphoma is related to military service including exposure to herbicide agents in service. CONCLUSION OF LAW The criteria for entitlement to service connection for non-hodgkin's lymphoma to include as secondary to herbicide agent exposure are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968; from May 1978 to February 1983; from March 1983 to April 1984; from November 1990 to May 1991 and from September 1997 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). A Veteran exposed to herbicide agents may also be entitled to presumptive service connection for certain enumerated diseases. 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 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. 38 C.F.R. § 3.307 (a)(6)(iv). For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis Entitlement to service connection for non-hodgkin's lymphoma to include as secondary to herbicide agent exposure and environmental hazards. The Veteran has asserted two separate theories of entitlement to service connection for his non-Hodgkins lymphoma. First, the Veteran asserts that his non-Hodgkins lymphoma is a result of herbicide agent exposure, specifically Agent Orange exposure during his military service in Korea. During his November 2020 hearing, the Veteran asserted that herbicide agents were used near the border of the Korean Demilitarized Zone (Korean DMZ) and that his squadron was stationed approximately 17 miles from the border of the Korean DMZ. He also testified that his squadron was stationed downhill from the border of the Korean DMZ and in some instances slept on the ground during rainstorms, with rain flowing downhill from the border of the DMZ. Secondly, the Veteran asserts that his non-Hodgkins lymphoma is secondary to environmental hazards to include burn pits during his service in Kuwait. The record, as discussed below does not establish a nexus between the Veteran’s non-Hodgkins lymphoma and exposure to burn pits in service. However, the preponderance of the probative evidence of record does establish that the Veteran’s non-Hodgkins lymphoma is secondary to herbicide agent exposure in service. First, an August 2016 letter from the Veteran’s VA hematologist establishes that the Veteran has a current disability of non-Hodgkins lymphoma which began in May 2015 and continues to have residual symptoms of neuropathy. With respect to in-service exposure to environmental hazards, the Veteran’s Certificate of Release or Discharge from Active Duty establishes that the Veteran served in Kuwait during his active duty service from September 1997 to August 1998. Further, the Board finds the Veteran’s testimony and lay statements that he was exposed to burn pits in service to be credible, as the Veteran is competent to report his in service experiences. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds the Veteran’s statements credible as they are consistent with the circumstances of his service. See 38 U.S.C. § 1154 (2012); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). However, the record does not establish a nexus between the Veteran’s exposure to environmental hazards in service and his non-Hodgkins lymphoma. Specifically, following September 2016 VA examination, the examiner opined that the Veteran’s non-Hodgkins lymphoma is not likely secondary to environmental hazards from service in the Gulf. The record contains no positive nexus opinions or other evidence to establish a nexus between the Veteran’s non-Hodgkins lymphoma and exposure to environmental hazards such as burn pits during his service in the Persian Gulf. Nonetheless, the record does establish entitlement to service connection for non-Hodgkins lymphoma as a result of herbicide agent exposure in service. In a February 1980 letter the Veteran asserts that he served in Korea for one year, one month and six days from January 1967 to February 1968. The Board finds the Veteran’s assertions to be credible as they are consistent with a September 2004 letter from the Departments of the Army and Air Force which note the Veteran had verified periods of service from May 1967 to May 1969 and awarded the Veteran the Korean Defense service Medal (KDSM). Because the Veteran did not serve between April 1, 1968 and August 31, 1971; he is not entitled to the presumption of exposure to herbicide agents in-service. However, service connection may be established on a facts found basis. Here, an April 2004 letter from the U.S. Armed Services Center for Unit Records Research confirms that herbicides were used in Korea between 1967 and 1968 with chemical herbicides being used along the southern boundary of the demilitarized zone during the 1967 to 1969 period by Republic of Korea Armed Forces as a part of counter infiltration operations; Agent Orange was used from April to August 1968. The Board finds this evidence probative in establishing the use of herbicide agents during the Veteran’s period of service in Korea. Moreover, the Board finds the Veteran’s November 2020 hearing testimony that he and his unit were stationed 17 miles downhill from the border of the Korean DMZ and slept outside during rainstorms to be competent and credible, and further support a finding of exposure to herbicide agents. The foregoing evidence establishes an in-service injury or event. Regarding establishing a nexus, in an undated opinion, received August 2016, the Veteran’s VA treating physician, the chief of hematology opined that it is at least as likely as not that Veteran’s exposure to herbicide agents relates directly to the Veteran’s diagnosis of non-Hodgkins lymphoma. Similarly, following his September 2016 VA examination the examiner opined that the Veteran’s lymphoma is more likely than not secondary to exposure to herbicide when in Korea. The Board finds these opinions to be probative as they are based on examinations of the Veteran and supported by adequate rationale. The Board notes that a June 2018 VA examination opinion opines a negative nexus between the Veteran’s non-Hodgkins lymphoma and military service, noting that there is no evidence of herbicide agent exposure. Even considering this opinion the evidence is at least in relative equipoise as to a nexus between the Veteran’s non-Hodgkin lymphoma and military service. As such, reasonable doubt must be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page)   Based on the evidence of record the Board finds that the preponderance of the probative evidence of record establishes that the Veteran’s current disability of non-Hodgkins lymphoma is related to his military service to include herbicide agent exposure during service in Korea. Entitlement to service connection for non-Hodgkins lymphoma due to herbicide agent exposure is granted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, 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.