Citation Nr: 21031085 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-19 658 DATE: May 20, 2021 ORDER Entitlement to service connection for non-Hodgkin's lymphoma is denied. FINDINGS OF FACT 1. The Veteran's non-Hodgkin's lymphoma did not become manifest during his service. 2. The Veteran's locations and duties during service do not warrant a presumption of herbicide exposure. 3. The Veteran's non-Hodgkin's lymphoma is not attributable to any exposures in service to herbicides, benzene, or other chemicals. CONCLUSION OF LAW The Veteran's non-Hodgkin's lymphoma was not incurred in service and is not attributable to any exposures in service to herbicides, benzene, or other chemicals. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for non-Hodgkin's lymphoma The Veteran had active service in the United States Air Force from September 1973 to September 1999. In March 2012 he was diagnosed with non-Hodgkin's lymphoma. He contends that his non-Hodgkin's lymphoma is attributable to exposure during service to the herbicide Agent Orange, benzene, and other chemicals. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain specifically listed diseases, including non-Hodgkin's lymphoma, may be presumed if a veteran was exposed during service to any of certain herbicide agents, including Agent Orange, that contain dioxin. 38 U.S.C. § 1116; 38C.F.R. §§ 3.307, 3.309(e). A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, 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 service. 38C.F.R. § 3.307(a)(6). An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, regularly and repeatedly operated, maintained, or served onboard C-123 aircraft means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(v). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service records contain information about his service locations and duties. In 1974 and 1975 he was stationed in Utah and was a squadron helicopter mechanic. In 1975 to 1977 he was stationed at Kadena Air Base (AB) in Okinawa, Japan. He was a squadron helicopter mechanic. His duties included refueling and defueling. His Air Force Specialty Code (AFSC) was 4315. In 1977 to 1983 he was stationed in Florida at Hurlburt Field, an auxiliary facility of Eglin Air Force Base (AFB), located about ten miles from the main base. He was a squadron flight mechanic and a flight engineer. His AFSC was 1137. In 1983 to 1987 the Veteran was stationed in Germany at Ramstein AB. He was a flight engineer, flight examiner, and instructor. In 1987 to 1994 he was stationed in New Mexico. He was a flight engineer, a supervisor of flight engineers and trainers, and an operations group superintendent. In 1994 to 1996 the Veteran was again stationed at Hurlburt Field at Eglin AFB. He was a flight engineer and a functional manager. From 1997 to 1999 he was stationed in Virginia at Langley AFB and served as a flight engineer and a functional manager. In March 2012 the Veteran had private treatment for recent onset of rectal bleeding and discomfort with bowel movements. Sigmoidoscopy showed a rectal mass. Biopsy showed that mass to be a CD20 positive B-cell lymphoma. The Veteran underwent cancer treatment, including chemotherapy, over several months. After chemotherapy he had follow-up. In December 2015 the Veteran sought service connection for non-Hodgkin's lymphoma. He contended that service connection is warranted because of his exposure in service to Agent Orange. He reported that in the Air Force he was a flight engineer and a helicopter mechanic. He stated that in the 1970s he was stationed at Hurlburt Field of Eglin AFB in Florida. He reported that he worked on aircraft that had returned from Vietnam. The Veteran submitted a January 2016 printout from the VA website. The portion of the website addresses Air Force Veterans who VA found had regular and repeated exposure to C-123s used to spray Agent Orange in Vietnam. VA indicated that the affected veterans included veterans of the 1st Special Operations Wing who served in 1970 to 1973 at Hurlburt Field of Eglin AFB. VA stated that the AFSCs with potential exposure included flight engineers and aircraft loadmasters with AFSCs 1130 to 1149 and aircraft maintenance specialists and flight technicians with AFSCs 4313 to 4359. In February 2021 the Veteran had a virtual Board hearing before the undersigned Veterans Law Judge. He contended that he was exposed to Agent Orange at Hurlburt Field at Eglin AFB. He noted that an environmental study showed Agent Orange as a contaminant in the soil at Eglin AFB. He stated that he was a helicopter mechanic. He noted that many helicopters were used to spray Agent Orange in Vietnam. He asserted that working on helicopters likely exposed him to Agent Orange. He stated that at Hurlburt Field he also spent considerable time out on the ranges, doing weapons training and other activities. He reported that as a mechanic he also was exposed to fuels, which contain benzene. He asserted that his benzene exposure could have contributed to causing his non-Hodgkin's lymphoma. He also noted that helicopters he worked on in Okinawa had been operated in Vietnam. The Veteran referred to a public health assessment for Eglin AFB, at http://www.floridahealth.gov/environmental-health/hazardous-waste-sites/_documents/e/eglinafb04113.pdf. In April 2003 the Agency for Toxic Substances and Disease Registry (ATSDR) of the United States Department of Health and Human Services reported on their public health assessment. The report indicated that since 1935 Eglin AFB had been the Air Force's primary munitions testing and training facility. The report stated that from 1962 to 1970, herbicides, including Agent Orange, were tested, by spraying, at the Herbicide Exposure Unit at Eglin AFB. The report found that contaminants in the soil at Eglin AFB included Agent Orange. The Veteran referred to information on non-Hodgkin's lymphoma at the website of the American Cancer Society, at https://www.cancer.org/cancer/non-hodgkin-lymphoma/causes-risks-prevention/risk-factors.html. That website states: Some studies have suggested that chemicals such as benzene and certain herbicides and insecticides (weed- and insect-killing substances) may be linked to an increased risk of NHL. Research to clarify these possible risks is still in progress. The Veteran's service locations and duties do not warrant a presumption that he was exposed to herbicides during service. He did not serve in Vietnam or the waters off of Vietnam. He was an aircraft mechanic on helicopters, not C-123s. Though the Veteran is not presumed to have herbicide exposure, evidence may show that he had exposure to herbicides, benzene, or other chemicals. He states that helicopters he worked on in Okinawa had been in Vietnam. That is consistent with the historical period and the relative proximity between Vietnam and Japan. His service there in 1975 to 1977, however, occurred largely after the spraying of herbicides in Vietnam. Even during the period of most of the spraying, only some helicopters were used in that spraying. The amount of any herbicide residue on the helicopters he handled would likely decrease over time. The ATSDR report states that Agent Orange and other herbicides were sprayed at Eglin AFB in testing performed from 1962 to 1970. The 2003 report states that Agent Orange contamination remained in the soil. The Veteran was stationed there for several years over two periods, and he reports having spent time in the field. His primary location, however, was at Hurlburt, rather than the main base where the testing occurred. His service at Hurlburt Field began several years after the testing finished. He worked on helicopters at Hurlburt Field from 1977, after the 1970 to 1973 period when C-123s used in herbicide spraying were at Hurlburt Field. His potential herbicide exposure during his Florida service was limited to exposure to residue from herbicide use years earlier. The Veteran's service records show that his helicopter mechanic duties in the 1970s included refueling and defueling. It is plausible that he was exposed to benzene in the fuels. The American Cancer Society website related a suggestion that benzene exposure might increase the risk for non-Hodgkin's lymphoma. The possibility of increased risk provides weak if any support for a connection between the Veteran's fueling duties and his non-Hodgkin's lymphoma. The Veteran has not had a VA medical examination or opinion addressing his non-Hodgkin's lymphoma service connection claim. The Court has noted that VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. For purposes of determining whether an examination or opinion is warranted, the threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran was diagnosed with non-Hodgkin's lymphoma. He attributes the disease to herbicide exposure, but it is unlikely that he had more than indirect exposure to old herbicide residuals. He attributes the disease to benzene exposure, but benzene has not been clearly established as a cause of non-Hodgkin's lymphoma. The record does not meet even the low threshold for finding that his non-Hodgkin's lymphoma may be associated with exposures during his service. VA is not obliged to provide a medical examination or opinion. The greater persuasive weight of the evidence is against a nexus between exposures during the Veteran's service and his non-Hodgkin's lymphoma. The Board denies service connection for that disease. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.