Citation Nr: 21021416 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-13 114 DATE: April 12, 2021 ORDER Service connection for T-cell large granulocytic lymphocytic leukemia (leukemia), as due to herbicide agent exposure, is granted. FINDING OF FACT 1. The competent and credible evidence tends to show that the Veteran had active service along the perimeter of Korat Royal Thai Air Force Base (RTAFB) during the Vietnam Era. 2. The evidence is in equal balance with respect to whether the Veteran’s T-cell large granulocytic lymphocytic leukemia (leukemia) is a chronic lymphocytic leukemia. CONCLUSION OF LAW The criteria for service connection for T-cell large granulocytic lymphocytic leukemia (leukemia) are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from July 1966 to July 1968. The Veteran died in December 2019, and the Appellant in this case is the Veteran’s surviving spouse. The Appellant filed a request for substitution in March 2020, within a year from the death of the Veteran, and the Agency of Original Jurisdiction (AOJ) granted the request for substitution in August 2020. Thus, the claim on appeal is properly before the Board of Veterans’ Appeals (Board) with the Appellant substituting for the deceased Veteran. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter is before the Board on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in June 2018, when the Board denied the Veteran’s claim for service connection for leukemia. The Veteran timely appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded for further action. Service connection for T-cell large granulocytic lymphocytic leukemia (leukemia), as due to herbicide agent exposure, is granted. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, 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).  VA provides special consideration of herbicide agent exposure on a factual basis for veterans whose duties placed them on or near the perimeters of Royal Thai Air Force bases. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang Royal Thai Air Force Base as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by daily work duties, performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at § 3.309(e) include all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Id. Although a veteran may not be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993). Prior to his death, the Veteran was diagnosed with T-cell large granulocytic lymphocytic leukemia. In a January 2021 private opinion, Dr. C.K. stated that the Veteran’s leukemia is a bone marrow cancer and is considered a subtype of chronic lymphocytic leukemia, which is on the list of presumptive herbicide agent diseases. Dr. C.K.’s opinion explains that up until the late 1990s this leukemia was grouped with chronic lymphocytic leukemia and is still considered to be a subtype of chronic lymphocytic leukemia. The opinion discusses medical information regarding different types of leukemia and the Veteran’s history regarding the leukemia. As it contains a thorough rationale and is based on his medical knowledge, the Board places great weight of probative value on Dr. C.K.’s opinion that the Veteran’s leukemia is considered a subtype of chronic lymphocytic leukemia. Therefore, based on this medical evidence, the Board concludes the evidence is at least in equipoise that the Veteran’s leukemia qualifies as a chronic lymphocytic leukemia entitled to presumptive service connection. The Board further finds the evidence is at least in equipoise as to whether the Veteran was exposed to Agent Orange or other herbicide agents during his service in Thailand. The evidence in this regard includes the Veteran’s statement that although he was a cook during his time in Thailand, his duties included driving trucks and delivering food rations and other supplies to other air bases in Thailand. A statement from a fellow servicemember in the same career field also describes their duties while deployed together in Thailand. The Veteran and the fellow servicemember also discussed how chemicals were being sprayed outside the perimeters of the camps they stayed at or visited. The Appellant also provided evidence the Veteran was near the perimeter of Korat RTAFB. The Veteran was stationed at Camp Friendship and the installation bordered the perimeter of Korat RTAFB, and was within the 500-foot buffer zone that would account for any drift from the ground spraying of herbicide agents. Additionally, the Appellant provided a statement the Veteran made, but was unable to sign prior to his death, testifying that his barracks and the mess hall were within a few hundred feet of the camp’s perimeter, and this is supported by photographs of the camp showing the barracks and mess hall in close proximity to the perimeter. Furthermore, the Appellant provided evidence showing that when servicemembers left the installation to visit the local area, they traveled along perimeter roads. Furthermore, the Appellant provided evidence of the presence of Agent Orange and other herbicide agents on multiple RTAFBs. This includes an August 3, 1968 purchase order for herbicides to Udorn RTAFB; a January 3, 1969 letter from Colonel J.W.P., commander of the 1 Attachment, 432nd Tactical Fighter Wing, commenting on the 12th Special Operations Squadron operating out of Udorn RTAFB from December 29, 1968 to January 2, 1969 for Operation Ranch Hand, where the USAF sprayed herbicides in Southeast Asia; and a June 30, 2005 letter from Colonel F.S.B, of the Department of the Air Force’s Office of Legislative Liaison, which states that “base commanders were at liberty to use herbicides for defoliation around their activities using either handheld or vehicle mounted units, with no accountability required.” The Board finds most probative the Veteran’s statement and a fellow servicemember’s statement concerning his duties while stationed at Camp Friendship. While the Veteran’s military occupation code was that of cook, both the Veteran and his fellow servicemember stated their duties involved driving trucks carrying supplies between different bases during their time in Thailand and that they had run into each other at times at different bases during these runs. The Veteran would also be required to cross base perimeters as he traveled between installations and likely travelled along perimeter roads during these supply runs. The Board also finds persuasive the evidence regarding the location of the Veteran’s barracks. Therefore, the Board concludes on a facts found basis that the evidence is at least in equipoise that the Veteran’s work conditions placed him near the Korat RTAFB perimeter and would have exposed him to herbicide agents. Thus, the Board resolves any reasonable doubt in the Appellant’s favor and concedes that the Veteran was exposed to herbicide agents during his service in   Thailand. Therefore, the Board concludes that service connection for T-cell large granulocytic lymphocytic leukemia as a chronic lymphocytic leukemia is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.