Citation Nr: 21040068 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 13-29 736 DATE: July 2, 2021 REMANDED Entitlement to service connection for chronic lymphocytic leukemia is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral lower extremity neuropathy is remanded. Entitlement to service connection for a chronic condition manifested by memory loss and syncope is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1964 to April 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran died. His death certificate lists the immediate cause of death as Richter's transformation of chronic lymphocytic leukemia and chronic lymphocytic leukemia. It also lists diabetes as a significant condition contributing to death. The next month, the Appellant (the Veteran's surviving spouse) timely applied for dependency and indemnity compensation (DIC), death pension, and accrued benefits, which VA interprets to include a request to substitute. 38 C.F.R. § 3.1010(c)(2). In August 2013, the RO recognized the Appellant as an eligible substitute for purposes of processing the appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. In January 2019, the Appellant testified at a hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been added to the Veteran's claims file. The Board remanded the Appellant's claim three times before ultimately denying it in November 2019. She appealed to the Court of Appeals for Veterans Claims (the Court). In November 2020, the Court set aside the Board's decision and remanded the case for readjudication. The case is once again before the Board. Entitlement to service connection for chronic lymphocytic leukemia, diabetes mellitus, hypertension, bilateral lower extremity neuropathy, and a chronic condition manifested by memory loss and syncope, are remanded. The Veteran contends that during the spring or summer of 1965 he delivered trucks to tactical herbicide testing locations near Fort Belvoir, Virginia, and then walked through fields of waist-high brown brush that had been recently sprayed. He estimated he did this about five times. Although he did not know the exact location of the field testing, he stated that it could have been Fort Ritchie, Fort Meade, Fort Detrick, or the Aberdeen Proving Grounds. In November 2019, the Board found that the Veteran had been diagnosed with a current disability for each claimed condition but ultimately concluded that service connection was not warranted. In the November 2020 memorandum decision, the Court held that the Board provided inadequate reasons or bases for its conclusions. In addressing the Veteran's potential for exposure to tactical herbicide agents at Fort Ritchie and Fort Meade, the Board's November 2019 decision noted that defoliant tests were conducted at Fort Ritchie between 1963 and 1964 and at Fort Meade in 1963, which is prior to the dates of the Veteran's alleged exposure. See Article regarding DOD Tactical Herbicide Sites. In the November 2020 memorandum decision, the Court held that the Board did not explain why contact with an area that DoD identifies as an herbicide testing location 1 or 2 years afterward could not expose the Veteran to herbicides and noted that the half-life of Agent Orange ranges from 9-15 years in the surface soil and 25-100 years in the subsurface soil. There is no presumption of exposure for servicemembers who served at Fort Ritchie or Fort Meade (or at Fort Detrick or the Aberdeen Proving Grounds). Notwithstanding the forgoing, the Appellant is not precluded from establishing service connection under the presumptive provisions of 38 C.F.R. § 3.309 with sufficient proof of actual direct exposure to herbicides. As a layperson, the Veteran is competent to report what he observed with his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Contact with soil contaminated by tactical herbicides could establish exposure on a facts-found basis; however, the Veteran is not competent to report that the soil he encountered was contaminated with tactical herbicide agents. On remand, the appellant remains free to submit any additional evidence or argument addressing this matter. See 38 U.S.C. § 5107(a). With respect to Fort Detrick, in the now-vacated decision, the Board stated that evidence obtained from the service department confirms that commercial herbicides were tested at Fort Detrick and were performed by base civil engineers and other laboratory personnel. With respect to the Aberdeen Proving Ground, the Board found that tactical herbicides were tested in 1965, but the testing was conducted at remote locations isolated from public access and performed by personnel affiliated with Fort Detrick. In the memorandum decision, the Court held that the Board erred in its finding that the Veteran did not come across herbicides in 1965 at testing locations on Fort Detrick and Aberdeen Proving Ground. Specifically, it was noted that the Board may not rely on the lack of evidence as substantive negative evidence without first explaining why that information would ordinarily be in those documents. Here, the Court stated that the Board appeared "to conclude that the lack of documentation of a junior enlisted servicemember delivering a truck to an herbicide testing location is dispositive evidence that he was not there. Yet the Board didn't discuss why it expected to find that evidence in a December 2006 DoD herbicide usage study or a November 2016 Armed Forces Pest Management Board memorandum." It was also noted that the Board failed to explain why an active duty servicemember would be unable to access the testing locations when the record indicates that they were "not accessible to the general population." The Department of Defense, Armed Forces Pest Management Board stated that "Agent Orange was applied to isolated test plots at Aberdeen Proving Ground during May through September 1965. Handling and spraying of the chemicals were done by biological laboratories personnel from Fort Detrick and the test plots were not accessible to the general population." Although the Veteran does not fit the category of personnel who would have conducted the tactical herbicide tests, the question of whether the Veteran may have visited the testing locations remains. In light of the above, to include the Court's memorandum decision, the Board finds that the letter from the Armed Forces Pest Management Board is unclear as to whether the test plots were not accessible to the general base population, such that only the personnel from Fort Detrick who were conducting the tests would have access, or whether the statement implies that the general civilian population would not have access to the locations. The matters are REMANDED for the following action: 1. Contact the Department of Defense, Armed Forces Pest Management Board, or any other appropriate organization, for additional information on tactical herbicide testing that was conducted at the Aberdeen Proving Ground in 1965. Specifically, clarification on the November 2016 letter contained in the claims file is needed to determine whether or not the test plots were not accessible to the general base population (anyone other than the personnel from Fort Detrick) or whether the November 2016 letter intended to state that the general civilian public did not have access to the plots. 2. After undertaking any additional development deemed appropriate and giving the Appellant full opportunity to supplement the record, adjudicate the Appellant's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Appellant and her attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.