Citation Nr: 21064204 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-28 684 DATE: October 19, 2021 ORDER Entitlement to service connection for multiple myeloma, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran served at the Korat Royal Thai Air Force Base and Ubon Royal Thai Air Force Base in Thailand in his military occupational specialty as a jet engine mechanic. He did not serve as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise serve near the base perimeter as shown by his military occupational specialty, daily work duties, performance evaluations, or other credible evidence; thus, exposure to an herbicide agent may not be presumed, and the evidence does not otherwise document that the Veteran was exposed to an herbicide agent on a facts found or direct basis during active service. 2. Multiple myeloma did not have its onset during active duty and is not otherwise related to active duty, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for multiple myeloma, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1968 to June 1972. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2020 Central Office hearing in Washington, D.C. The Veteran's claim on appeal was previously denied by the Board in a May 2020 decision, after which the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR), which was granted by the Court that same month. The matter is now returned to the Board for action consistent with the December 2020 JMR. Within the December 2020 JMR, the parties agreed that the Board's May 2020 decision erred in two respects. First, the parties agreed that the Board did not consider potential evidence of active service in the Republic of Vietnam. Second, the parties agreed the Board erred in finding that the evidence did not show that Veteran's myeloma manifested to a degree of 10 percent disabling or more within one year from his service separation, as the 10 percent manifestation requirement does not have a one-year limitation for myeloma as a disease associated with exposure to herbicide agents; therefore, remand was also warranted for the Board to apply the disease manifestation requirement from 38 C.F.R. § 3.307(a)(6)(ii). The terms of a JMR will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed by the Board. See Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014). Therefore, as discussed below, the Board address the relevant inadequacies, including those raised in the December 2020 JMR, with consideration of the additional evidence and argument added to the claims file since that time. Entitlement to service connection for multiple myeloma, to include as due to exposure to herbicide agents. The Veteran seeks service connection for multiple myeloma, which he asserts was caused by his alleged in-service exposure to herbicide agents as a jet engine mechanic during active service at Korat Royal Thai Air Force Base and Ubon Royal Thai Air Force Base in Thailand. During the February 2020 Board hearing, the Veteran testified that he noticed the foliage at the perimeter of the base was oily but that he never got close to it. He stated that he was at the trim (test) pads but did not go beyond it into the "concrete thing." The Veteran indicated that the jet engine test pads were about 25 to 50 yards away from the fence line. He stated that he was at the trim pads three to four different times a month for two to three hours each time to fix any problems and test to ensure that there were no longer any problems. He stated that he worked on phantom engines, J-79 engine on F-4 and F-14 planes, which would back into the foliage kicking up dust, dirt, grass, twigs, etc., anything behind the engine, throwing it everywhere. The Veteran reported that he was covered in that dust and would take a shower and took off his uniform when he returned to base. The Veteran also testified that he would leave the bases and go across the perimeter to go downtown in service. Similarly, within a June 2021 statement, the Veteran reported that as a jet engine mechanic during active service, he was responsible for removing, repairing, and testing jet engines from aircraft. He noted that during the testing, the engines were taken out to the middle of the perimeter of the base so if something went wrong, it would be away from other people and aircraft. He stated that they worked in crews, so he was not always doing the testing, but that he would go out to the perimeter at least three times per month. He stated that the tests took three to four hours at minimum because there were a lot of adjustments to make and, due to the heat, they were almost always shirtless and wore no protective gear, and that when he returned, he would be covered in dirt and dust that was kicked up by the engines. When he was not at the perimeter testing, he worked in the engine shop, which was about 200 yards from the flight line. At both bases, the barracks, mess hall, and other amenities were in the very interior of the base, away from the perimeter and flight lines. These were supposed to be the most protected areas, so they were at least a mile and a half from the perimeter and surrounded by hangers, repair shops, and other administrative buildings. The Veteran stated that he spent most of his off-time in these buildings, though he worked 12-hour shifts, so a lot of his time was spent in the repair shop or on the perimeter. He noted that although he worked six days per week, he often spent the days he was not working off-base, which involved taking a bus through a main gate once per week to cross the perimeter to go into town and then cross it again to return to base. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 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. Service connection may also be granted for certain specified diseases on a presumptive basis due to exposure to certain herbicide agents, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence weighs against the Veteran's claim, including his assertion that he was exposed to herbicide agents during active service. The reasons for this decision follow. Initially, the Board notes that private treatment records from June 2015 document a diagnosis of multiple myeloma after a bone marrow report showed approximately 25 percent of plasmacytosis, which was consistent with multiple myeloma. As such, the Veteran has met the first element of a service connection claim, the requirement of a current disability. Regarding the in-service element, the Board finds that service treatment records do not document an onset of multiple myeloma or related symptoms during active service. Moreover, the Veteran does not assert that his current multiple myeloma had its onset during active service. Rather, he asserts that his claimed disability is presumptively due to exposure to herbicide agents during active service. As noted above, the evidence of record, including service personnel records, documents that the Veteran served as a jet engine mechanic during active service at Korat Royal Thai Air Force Base and Ubon Royal Thai Air Force Base in Thailand. However, as discussed below, the Board finds that service connection for multiple myeloma is not warranted. Although it is one of the enumerated diseases presumptively associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e), the most probative evidence does not weigh in favor of a finding that the Veteran was exposed to herbicide agents, to include Agent Orange, during active service, either directly or presumptively, or that there is otherwise a nexus between his current disability and active service. As noted in the December 2020 JMR, the parties first agreed that the Board erred in not considering potential evidence of the Veteran's active service in the Republic of Vietnam, which would entitle the Veteran to presumptive service connection under 38 U.S.C. § 1116. As such, the Board acknowledges an October 1982 VA treatment record wherein the Veteran reported that he had previously received an Agent Orange examination in early 1981 although "he spent only ~5 hrs in Vietnam." However, to the extent that this isolated treatment record could be potential evidence of the Veteran's presence in the Republic of Vietnam that would otherwise entitle him to the presumption of service connection for multiple myeloma, the Board finds that the October 1982 VA treatment record is outweighed by other, more detailed evidence of record, which fails to document probative evidence of active service or visitation to the Republic of Vietnam. For example, in the July 24, 1980 Agent Orange examination report, when asked when and where did these exposures occur, where it asked the Veteran to "Specify dates, military field bases, and length of exposure," the documented response was, "Ubon Thailand Korat Thailand." In other words, when specifically asked about the military field bases where the Veteran could have been exposed to chemicals, he reported only the two bases he served in Thailand. He did not report service in Vietnam, which the Board finds is strong evidence against the Veteran having been in Vietnam. As the use of Agent Orange was prevalent in Vietnam, if the Veteran had been to Vietnam, the Board finds he would have reported such fact when specifically asked about his exposure to chemicals. Instead, he documented his service in Thailand only. Additionally, the facts documented in the July 1980 Agent Orange examination report are supported by and consistent with the service personnel records, which do not document service in Vietnam. Instead, they consistently document in various locations the Veteran's service in Thailand at the Ubon and Korat Air Force bases. The facts regarding his two periods of service in Thailand are documented in multiple locations within his service personnel records, and his service treatment records also document these two foreign locations when he sought treatment while stationed in Thailand. The service personnel records do not document service in Vietnam. Moreover, the Veteran has not otherwise asserted active service or visitation in Vietnam in conjunction with the current appeal, including within the June 2021 Declaration he submitted, which was drafted after the case came back from the Court, to include for purposes of having the Board address whether the Veteran was present in Vietnam. The Agent Orange examination was performed specifically to determine whether the Veteran was exposed to herbicide agents, and he reported service in Thailand only and not in Vietnam. Therefore, the Board finds that the facts documented in the July 1980 Agent Orange examination report are more probative than the comment documented in the October 1982 VA treatment record. Therefore, the Board finds that the isolated October 1982 treatment record does not warrant a finding that the Veteran was in Vietnam. Next, the parties agreed within the December 2020 JMR that the Board erred in finding that the evidence did not show that the Veteran's myeloma manifested to a degree of 10 percent disabling or more within one year from his service separation such that the presumption of service connection did not apply. The parties noted that the 10 percent manifestation requirement does not have a one-year limitation for myeloma. Rather, as required by 38 C.F.R. § 3.307(a)(6)(ii), the disease associated with exposure to certain herbicide agents, including multiple myeloma, shall have become manifest to a degree of 10 percent or more at any time after service. Additionally, the parties noted that the Board referred to the chronicity of multiple myeloma, but myeloma is not a chronic disease as listed in 38 C.F.R. § 3.309(a), and similarly, the principles of "chronicity and continuity" apply only to chronic diseases. As such, the Board concedes that consideration of presumptive service connection for a chronic disease is not warranted, and the exact time that the Veteran's multiple myeloma first manifested does not affect the potential for presumptive service connection as a disease associated with exposure to herbicide agents. However, the Board finds that consideration of whether the Veteran's symptoms manifested to a compensable degree is essentially moot, as it first requires a finding of exposure to herbicide agents, and for the reasons discussed below, the Board finds that the most probative evidence does not weigh in favor of a finding that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active service in Thailand, either directly or presumptively. In May 2010, a VA bulletin noted that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. VA determined that special consideration of herbicide exposure on facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. It was noted that the majority of troops in Thailand during the Vietnam era were stationed at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a U.S. Air Force veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. This applies only during the period from February 28, 1961 to May 7, 1975. See Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010); Project CHECO Southeast Asia Report: Base Defense in Thailand. Thus, VA has acknowledged that there is "some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides." Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). In September 2021, the Veteran's attorney submitted a brief with multiple documents attached in support of the Veteran's assertion that he was exposed to herbicide agents during active service in Thailand, including a June 2021 statement of the Veteran, various maps of Korat RTAFB (which appear to be an official Department of the Air Force base plan with overlays added to the map documenting a 500 meter herbicide drift zone around the base and identifying, living, eating, recreational, and occupational facilities in that "drift zone" and with sections of this map enlarged and annotated to support the Veteran's theory), an article "Vegetation Control and Other Uses of Herbicides and Toxic Chemicals at Korat Royal Thai Air Force Base 1967-1972" by Larry Westin, the Air Force Project CHECO Southeast Asia Report: Base Defense in Thailand, and a December 1971 Army field manual entitled "Tactical Employment of Herbicides" (which advised that a 500-meter buffer distance should be maintained when spraying defoliants). The Veteran's attorney essentially asserts that the Board misinterpreted VA's own M21-1 provisions concerning herbicide exposure in Thailand by finding that being near the base perimeter did not constitute contact with herbicides or its residue. The Board has also carefully considered the Veteran's lay statements of record, including his February 2020 hearing testimony and his June 2021 statement each described in detail above. Notably, the Veteran does not assert that he served as a security policeman, security patrol dog handler, or member of a security police squadron; rather, he asserts, as noted within his attorney's September 2021 brief, that he "otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence." The Board acknowledges that the Veteran is generally competent to report the location and circumstances of his service, to include what RTAFB he was at and that the duties that took him near the perimeter. Indeed, the Board finds no reason to doubt the lay assertions of the Veteran regarding his duties in Thailand. Moreover, the Board is not simply dismissing the Veteran's descriptions of the proximity of such duties to the base perimeter. Rather, the Board has considered the lay reports concerning the Veteran's duties and proximity to the base perimeter, and the Board does not find that either the Veteran's duties or other activities resulted in the type of potential exposure contemplated by VA's special consideration of herbicide exposure on a facts found or direct basis for those veterans whose duties placed them on or near the perimeters of Thailand military bases. In particular, while the Veteran's service personnel records document his active service at Korat Royal Thai Air Force Base and Ubon Royal Thai Air Force Base in Thailand, the most probative evidence of record does not otherwise show that the Veteran was directly exposed to herbicide agents during that time in his MOS as a jet engine mechanic or during his intermittent crossings of the perimeter during his off-duty days, and there is no presumptive herbicide agent exposure for veterans within a certain distance or a spray zone or buffer zone near the base perimeter at Korat or Ubon RTAFB. Additionally, while the Veteran is competent to report the circumstances of his involvement in jet engine testing approximately 25-50 yards from the base perimeter, his work in the engine shop approximately 200 yards from the base perimeter, or his weekly crossing of the perimeter to go into town on his day off, the Veteran is not competent to assert that the mere proximity of these activities near the base perimeter actually exposed him to herbicide agents, including as being within a 500-meter buffer distance recommended by the Army in a 1971 pamphlet. Indeed, the Board finds this scenario does not qualify as "on or near" the base perimeter in order to qualify for the special consideration regarding herbicide exposure on a facts found basis afforded to certain specified U.S. Air Force veterans. Moreover, to the extent that the Veteran and his attorney rely on various materials, including the annotated maps of Korat RTAFB with overlay of a 500 meter herbicide drift zone, the article "Vegetation Control and Other Uses of Herbicides and Toxic Chemicals at Korat Royal Thai Air Force Base 1967-1972," the Air Force Project CHECO Report, and a December 1971 Army Field Manual regarding Tactical Employment of herbicides to argue that the Veteran was exposed to herbicides within a 500 meter buffer zone from the base perimeter, the Board is mindful first that the Army Field Manual does not apply to the use of non-tactical herbicides, which were the type of herbicides used in Thailand. Therefore, this manual, and the additional supporting documentation submitted by the Veteran and his attorney, including maps and the article regarding the use of herbicides at Korat RTAFB, do not support a finding that there is a 500 meter buffer zone around non-tactical herbicide sprayed areas. In considering the relevant M21-1 provision, the Board reasonably finds that the fact that VA carved out limited qualifications for certain Air Force veterans with service in Thailand indicates that the provision was not intended to concede herbicide agent exposure to any veteran who asserts that he was "on or near" the perimeter. Rather, the fact that VA listed certain types of MOS duties, including security policeman, security patrol dog handler, and member of a security police squadron, is indicative of a limited scope of applicability. Concerning the catch-all provision, with reference to those veterans who "otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence," the Board finds that this also indicates that the finding of herbicide agent exposure based upon RTAFB perimeter service was not to be expansive and apply to any veteran who asserted proximity to a base perimeter, but rather that the reference to MOS and performance evaluations indicates that a finding of perimeter service was to be regular, frequent, and routine. It is reasonable to assume that if the intent of VA's M21-1 provision regarding Thailand service and herbicide agent exposure was to concede such exposure to anyone who was at the perimeter of a RTAFB, then VA would have stated as much, or allowed for presumptive herbicide exposure based upon service at the specified RTAFBs. Significantly, however, VA did not do so, but rather limited the provision and specifically stated that herbicide exposure must be found on a direct or facts found basis. While the M21-1 specifically mentions security police and security patrol dog handlers, the Board distinguishes these duties from the Veteran's MOS as a jet engine mechanic in reference to work duties near the air base perimeter approximately three to four times per month. The tactical employment of herbicides for the defoliation of heavily vegetated areas is the primary means of obtaining visual observation of enemy forces, facilities, roads, ambush sites, infiltration routes, and other enemy locations from the air, ground, or water. The Board finds that Veteran has credibly and consistently reported that as a part of the duties of his MOS, he tested jet engines approximately three to four times per month on test pads located approximately 25-50 yards from the base perimeter, and otherwise conducted engine repair at a shop located approximately 200 yards from the base perimeter. However, it is reasonable that such duties would not take place in a defoliated area that is intended to remain clear so as to engage any enemy intruders. Moreover, the Veteran's own February 2020 hearing testimony documents that he noticed the foliage at the perimeter of the bases, which is at least some indication that there was existing foliage at the perimeter location where the Veteran performed his jet engine testing duties, rather than it being located in a defoliated area. Thus, the duties performed by security police and dog handlers, by their respective natures, place such personnel at a higher propensity to enter such defoliated areas in order to guard or patrol the perimeter from enemy intruders, which would reflect actual, as opposed to presumed, exposure to sprayed herbicide agents, to include overspray or drift. Additionally, the duties described by the Veteran differ from the specific military specialties identified by VA as warranting special consideration for exposure to herbicide agents based on RTAFB service. The Veteran's MOS duties, which involved jet engine repair and jet engine testing, would reasonably take place in secured areas not susceptible to enemy intrusion and, thus, would not have placed the Veteran in direct contact with the defoliated areas on the base perimeter or an herbicide agent. As noted above, the Veteran's own testimony of observing foliage at the base perimeter weighs against a finding that his duties placed him in the defoliated areas of herbicide use. The Board finds that even assuming three to four occurrences of jet engine testing near the base perimeter each month and approximately weekly crossings of the base perimeter to go to town and back as described by the Veteran does not equate with the duties of the particular military specialties identified by VA, which all involve being posted at, or walking along, the base perimeter on a regular and recurring basis. As such, the Board concludes that the weight of the probative evidence is against a finding that the Veteran's duties routinely placed him on or in close proximity to the air base perimeter such that herbicide exposure may be found. Moreover, the preponderance of the evidence is against a finding that the Veteran was otherwise directly exposed to herbicides while serving at Korat and Ubon Air Force Bases in Thailand. Further, when the July 1980 Agent Orange examination was completed, based on the answers documented, the Veteran did not believe he was exposed to herbicide agents. For example, when asked, "How many exposures does the veteran allege?," the documented answer was a line, which the Board presumes is a negative answer. When asked, "What was the nature of the exposure?," the documented answer was a line. When asked to, "Define severity of the exposure circle or check as appropriate." The answers were "Severe," "Direct," "Repeated," "Prolonged," "Short," "Mild," and "Indirect." The documented answer was a line. In response to the question, "How directly was the veteran brought in contact with chemicals?" The person was supposed to "Check one." The three answer choices were, "Veteran was a member of headquarters personnel and far removed from site of chemical exposure," "Veteran was in field," and "Veteran operated apparatus used for chemical spraying or handled bulk chemicals in such a manner that gross exposure was possible." The response was a line, which, again, the Board finds is a negative response. When asked, "Did veteran enter areas where chemicals previously had been sprayed or spilled or did veteran eat from utensils or drink water contaminated by chemicals? Does veteran remember chemical names? Describe in detail." The documented answer was, "No." The answers provided approximately eight years following service discharge show that the Veteran did not report specifics of the alleged exposure to herbicide agents, and there is a definitive answer that he reported he did not enter areas where chemicals had been sprayed. While the Board understands that there may have been a lack of understanding by the Veteran at that time of the potential exposures that occurred or did not occur while serving in Thailand, the documented facts in the 1980 Agent Orange examination report do not support a finding that the Veteran was exposed to an herbicide agent while stationed in Thailand on two, separate occasions. The Board is sympathetic to the Veteran and his diagnosis of multiple myeloma and is appreciative of his active service. However, based upon a careful review of the evidence of record, including the deficiencies identified in the December 2020 JMR, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran was exposed to herbicide agents during his active service in Thailand. Given this, the preponderance of the probative evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for service connection for multiple myeloma is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.