Citation Nr: 21069780 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-16 641 DATE: November 19, 2021 ORDER Entitlement to service connection for non-Hodgkin's lymphoma is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran was exposed to herbicide agents while serving as a Seabee with the Naval Construction Battalion Center (NCBC) in Gulfport, MS, from July 1974 to November 1976. 2. The Veteran has been diagnosed with non-Hodgkin's lymphoma. CONCLUSION OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for non-Hodgkin's lymphoma have been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 with the Navy from July 1974 to November 1976. He had subsequent service in the US Army Reserve from March 1978 to February 1996. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied entitlement to service connection for non-Hodgkin's lymphoma to include as due to herbicide agent exposure and remanded his claim for service connection for a lumbar spine disorder. In October 2019, the Board remanded his claim for service connection for a lumbar spine disorder again for additional development. The Veteran subsequently appealed the April 2019 decision to the United States Court of Appeals for Veterans Claims (the Court). In a June 2020 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), which vacated the Board's April 2019 denial of service connection for his non-Hodgkin's lymphoma. The Court found the Board's decision provided an inadequate statement of reasons and bases. The Board failed to discuss an April 2018 statement by the Veteran where he noted 850,000 gallons of agent orange were stored at the Gulfport facility when he was stationed there. A failure to discuss potentially relevant evidence does not enable the Veteran to understand the basis for the decision rendered and frustrates judicial review. In November 2020, the Board granted service connection for the lumbar spine disorder and denied entitlement to service connection for his non-Hodgkin's lymphoma. Therefore, his lumbar spine disorder claim is no longer on appeal before the Board. The Veteran subsequently appealed the November 2020 decision to the Court. In a June 2021 order, the Court granted the parties' JMPR, which vacated the Board's November 2020 denial of service connection for his non-Hodgkin's lymphoma. The Court found the Board's decision provided an inadequate statement of reasons and bases. The Board failed to analyze materially favorable evidence which conflicted with its decision that storage of agent orange did not equal exposure. Specifically, the Board found contamination of the ground water by agent orange or other herbicide agents in Gulfport, MS or Okinawa, Japan could not be confirmed based merely on the storage of herbicides at those locations. Applicable Law and Regulations Entitlement to VA compensation may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; if they manifested to a compensable degree within a presumptive period following separation from service; or if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 C.F.R. § 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In the absence of presumptive service connection, the right to compensation for a present disability on a direct basis should be considered. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Direct service connection can be established if the Veteran shows (1) the existence of 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran reported serving as a mess management specialist with the Seabees Naval Mobile Construction Battalion One from July 1974 to November 1976. His Seabee duties included grading an airstrip, conducting soil tests for amphibious landing zones, and building new barracks facilities. Gulfport, MS was his home port. They would stay at their home port for eight months and deploy for six months at a time. He contends his company held trainings next to the area where the agent orange was stored. For example, they dug fighting positions and conducted truck convoy ambush exercises on the dirt road that ran along the track used to move the agent orange to the port. Additionally, they set up communications centers operated out of warehouse 62. The Veteran contends that many of the barrels were leaking and contaminating the grounds. There was no way to avoid the contaminated areas due to the nature of his duties and constant training conducted on the grounds. In September 2016, the Veteran was diagnosed with non-Hodgkin's lymphoma. Non-Hodgkin's lymphoma is included on a list of enumerated diseases for which service connection can be granted on a presumptive basis. However, exposure to an herbicide agent is not presumed for veterans stationed in Gulfport, MS during the period of the Veteran's active service. The central issue that must be resolved is whether the Veteran was exposed to herbicide agents in service. There is no evidence in the Veteran's military records expressly confirming his exposure to agent orange, or any other herbicide agent. An April 2017 Formal Finding Memorandum determined the Veteran's exposure to agent orange could not be verified and exposure was not conceded. However, the evidence confirms that herbicides were stored at the Naval Construction Battalion Center (NCBC) in Gulfport during the time the Veteran was stationed there. In February 2017, the Veteran submitted letters from the Hancock County Veterans' Service Center. The December 1991 letter argued the presumption of exposure to agent orange should include non-Vietnam veterans who were exposed at the US NCBC in Gulfport, MS from 1960 to 1988. 15,000 barrels of agent orange were stored there from the 1960s to 1977. Some of the barrels leaked during storage and in 1988 the Department of Defense (DoD) spent 20 million to incinerate 26,000 tons of contaminated soil from 29 acres of the site. Numerous servicemembers were exposed in the same manner as Vietnam veterans and should be afforded the same umbrella of protection. The Veteran submitted a clipping of a November 1991 Sun Herald article entitled "Air Force, Navy want soil cleared from EPA's hazardous waste list" by Sharon Ebner. Ms. Ebner reported that three years after the soil was incinerated to remove the agent orange it continued to sit in an open field at the NCBC in Gulfport and be listed by the EPA as hazardous waste. In April 2017, the Veteran submitted a document with information from DoD on herbicide tests and storage outside of Vietnam. The list indicated that 15,161 drums of agent orange were stored at Gulfport, MS from 1968 to 1970. In the summer of 1977, the US Air Force incinerated 2.22 million gallons of agent orange at sea as part of operation Pacer HO. In April 2018, the Veteran's representative responded to the January 2018 statement of the case (SOC). The RO found the Veteran was not exposed to agent orange at Gulfport because he was stationed there many years after the herbicide agent was no longer stored there. The Veteran's representative contended the RO failed to take the lifespan of agent orange into account. A Department of Health and Human Services (HHS) study entitled "Toxicological Profile for Chlorinated Dibenzo-p-Dioxins" found the half-life of dioxins like agent orange was years or even decades. The estimated half-life of dioxins on the soil surface ranged from nine to 15 years and the half-life in the subsurface soil might range from 25 to 100 years. Additionally, the NCBC at Gulfport admitted about 850,000 gallons of agent orange was stored at Gulfport past 1970. It was in fact stored there between 1968 and 1977, which coincided with the Veteran's service. The Veteran's representative noted a document entitled "Invitation to Comment on the Proposed Cleanup at the Former Herbicide Orange (Agent Orange) Storage Areas and Drainage Ditches at the NCBC Base" found on the Navy's website. This document discussed how the Air Force was cleaning up the Gulfport location through 1988 and testing conducted in 1995 revealed dioxins were still in the soil. The DoD official list of herbicide storage and test sites outside of the Republic of Vietnam includes the NCBC at Gulfport, MS from June 1968 to June 1977. The DoD list notes that the NCBC at Gulfport stored herbicide orange, herbicide blue, and herbicide white in a secure 12-acre storage area for the purpose of shipping to Vietnam and then storage pending guidance of disposal. The evidence indicates herbicide agents were stored where the Veteran was stationed at the time he was stationed there, and provides strong evidence indicating the drums utilized to store those herbicide agents leaked. The Veteran is competent to report his Seabee duties of grading an airstrip, conducting soil tests for amphibious landing zones, and building new barracks facilities as well as his company's training exercises (i.e., digging fighting positions, conducting truck convoy ambush exercises on the dirt road that ran along the track used to move the agent orange to the port, and operating communication centers out of the warehouse). These duties would put him in contact with what we now know was likely contaminated soil. His reports of proximity to the contaminated areas were both plausible and entirely consistent with the places, types, and circumstances of his service. As such, the Board finds that the evidence is in relative equipoise as to whether the Veteran was exposed to herbicide agents while serving as a Seabee with the NCBC in Gulfport, MS, from July 1974 to November 1976. While his personnel records do not confirm direct exposure to herbicides, the evidence clearly indicates herbicides were stored at the Gulfport naval base during the time the Veteran was stationed there and the Veteran's various statements over the course of this appeal have been consistent. Resolving all reasonable doubt in favor of the Veteran, the evidence of record demonstrates that he was exposed to herbicides during service and has since been diagnosed with non-Hodgkin's lymphoma. Therefore, service connection for non-Hodgkin's lymphoma is granted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.