Citation Nr: 21040081 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-30 817 DATE: July 2, 2021 ORDER Entitlement to service connection for non-Hodgkins lymphoma due to herbicide exposure is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, non-Hodgkins lymphoma is attributable to herbicide exposure that occurred while stationed at Fort Chaffee. CONCLUSION OF LAW The criteria for entitlement to service connection for non-Hodgkins lymphoma are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1973 to January 1993. In June 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2019, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to service connection for non-Hodgkins lymphoma due to herbicide exposure Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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' the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If the veteran was exposed to an herbicide agent during active service, non-Hodgkins lymphoma shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's medical records reveal a diagnosis of non-Hodgkins lymphoma. Thus, the requirement for a current disability is satisfied. The Veteran contends he is entitled to presumptive service connection for his non-Hodgkins lymphoma due to exposure to herbicide agents while stationed at Fort Chaffee, Arkansas. The Veteran testified that he was temporarily stationed at Fort Chaffee from April to July 1975, which is consistent with his military personnel records. According to the Veteran, at Fort Chaffee his duties required him to travel the entire installation, to include lakes and ponds, roads, and forested areas as Operations Officer in support of Operation New Arrival. The evidence establishes that Fort Chaffee has a history of herbicide testing. According to the "2019 Department of Defense (DoD) List of Locations Where Tactical Herbicides and Their Chemical Components were Tested, Used or Stored Outside of Vietnam" herbicide orange, blue and white were applied via helicopter with application ranges of May 16-18, July 22-23 and August 23-25 1967. The Agency of Original Jurisdiction (AOJ) concluded that the Veteran was not exposed to herbicide agents at Fort Chaffee as the professional research from the Veterans Benefit Administration, Compensation Service, Military Records Research Center concluded after a comprehensive search that there was no evidence located to support documentation of the claimed exposure. The synopsis provided indicated that the following sources were reviewed: "The History of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides" and a report from the official website of the U.S. Army titled, "Final Report Agent Orange: A History of Its Use, Disposition, and Environmental Fate." However, unit history, while requested, was not reviewed as the National Archives and Records Administration (NARA) was unable to locate the records. See Other March 26, 2021. Additionally, an email correspondence dated December 22, 2020 reported that the DoD list of locations where tactical herbicides were used or stored outside Vietnam does not contain names of individuals involved with Agent Orange and there are no references to routine base management such as range management, brush clearing and weed killing, which are accomplished with commercial herbicides. The correspondence concluded that any herbicide use observed by the Veteran was associated with the commercial variety as the DoD did not identify any location on Fort Chaffee where Agent Orange was used, tested, stored, or transported. In support of his claim the Veteran submitted several lay and buddy statements documenting the alleged herbicide exposure. The Veteran provided a statement of his conversation with R.S., who worked with the Fort Chaffee Roads and Ground Division in the 1970s. R.S. informed the Veteran that he used chemicals for weed control that were from 55-gallon drums stored in a warehouse labeled "2.4.5T", which were sprayed from a pick-up truck until 1977. In a notarized statement dated September 17, 2013 D.N. reported that in April 1970 he was assigned to Fort Chaffee to the Caretaker Detachment, which involved patrolling the areas where Agent Orange was stored and previously tested and again for Operation New Arrival in 1975. Having been previously exposed to Agent Orange in Korea, D.N. stated that he remembered its smell, feel and taste while at Fort Chaffee. In particular, he pointed out during both his assignments to Fort Chaffee fellow soldiers fished and consumed the fish in Engineers Lake where runoff from the test plots contaminated the water. D.N. reported that the Fire Chief of Fort Chaffee during the periods he was stationed there, informed him that Dioxin was routinely used to clear areas of foliage around the installation. In a statement dated October 19, 2015, R.B. reported that during his position as Director of Facility Engineering in January 1981 he visited the lumber yard with the Chief of Roads and Grounds and discovered four old 55-gallon drums on a pallet. R.B. was informed that the drums contained Agent Orange and the letters "2,4,5T", while faded, were visible and that they had been there for at least three years. M.J. provided a notarized statement reporting work in the plumbing shop at Fort Chaffee from April 1975 to March 1976. During this time, he received two five-gallon cans of "2,4,5T" from a member of Roads and Grounds to clear underbrush and was informed it was what they used to spray around building and motor pool fences. Additionally, M.J. reported seeing many barrels labeled "2.4.5T" stacked four barrels to a pallet, two pallets high in the warehouse that were green with a white middle band. W.H., also stationed at Fort Chaffee for Operation New Life from July 1975 to January 1976 reported developing several medical conditions, to include diabetes and ischemic heart condition despite no family history. The Veteran's medical treatment records include an opinion from treating physician, Dr. L., who reported in August 2011 that the Veteran's cutaneous B cell lymphoma was definitely not caused by sun exposure and that he suspected chemical exposure may have something to do with the occurrence of the disease. At the hearing, the Veteran testified that he does not have family history of non-Hodgkin's lymphoma. The evidence of record also includes a memorandum dated August 28, 2008 regarding "Congressional Inquiry Concerning Past Defoliant Use at Fort Chaffee." See Congressionals February 6, 2019. According to the memorandum, a report dated October 7, 1996 Final Environmental Baseline Survey identified seven defoliant spray areas (DSA) where herbicides were used in the 1960s. A Preliminary Assessment/Site Inspection from May 2003 evaluated and sampled the surface soil and shallow subsurface soils on four of the sites. The results of the samplings detected herbicides at the site at low levels that were well below threshold limits. Thus, it was concluded that there was no risk to human health. The December 2006 report "The History of US DoD Programs for the Testing, Evaluation, and Storage of Tactical Herbicides" confirmed that between July and October 1967 10 drums of herbicide blue, two drums of herbicide orange and six gallons of herbicide white were used on two three acre plats within one of the DSA's. The memorandum reported that Agent Orange is a 50/50 mixture of 2, 4, D and 2, 4, 5T with the dioxin TCDD associated with this defoliant as a contaminant of the mixture resulting from the manufacture of 2, 4, 5T. According to the report, TCDD is a known human carcinogen, which is very persistent in the environment but can be slowly degraded by sunlight. When resolving all reasonable doubt in the Veteran's favor, the Board finds the evidence is in a state of equipoise regarding his in-service exposure to herbicide agents. The collective lay statements report old 55-gallon drums with faded letters of "2, 4, 5T" and green barrels with a white band consistent with the types of herbicides (Orange, Blue and White) that were tested and sprayed in 1967. Furthermore, several statements consistently report that herbicides were routinely used around boundary fence lines, roads, and buildings well into the 1970s. The Board finds, based on the facts of the current situation, that the Veteran and his fellow Veterans are competent and credible to report their observations while stationed at Fort Chaffee of witnessing the 55-gallon drums and their markings as well as observing the spraying and subsequent clearing of areas of foliage. Significantly, the Preliminary Assessment/Site Inspection of May 2003 found herbicides at low level at Fort Chaffee 36 years after the application to the DSA. While found at low levels, the presence of herbicides 36 years later, and 28 years after the Veteran's alleged exposure, strongly suggests that the herbicides were prevalent just eight years after application when the Veteran was stationed at Fort Chaffee. Furthermore, it would be reasonable to infer that the closer in time to the application of the herbicides, the increased likeliness that the level of herbicide present would be higher. Accordingly, herbicide exposure is conceded. As exposure to herbicide agents is established, the Veteran is entitled to presumptive service connection for non-Hodgkins lymphoma. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.