Citation Nr: 21041667 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 20-27 875 DATE: July 9, 2021 ORDER Service Connection for chronic lymphocytic leukemia (CLL) is granted. Service connection for diabetes mellitus, type II (DM II) is granted. Service connection for recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome, secondary to service-connected CLL is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, he was exposed to Agent Orange while serving at the Toral Thai Air Force Base in Nakhon Phanom, Thailand. 2. The Veteran's CLL is presumed to be related to herbicide exposure at a Royal Thai Air Force Base in Nakhon Phanom, Thailand while on active duty service. 3. The Veteran's DM II is presumed to be related to herbicide exposure at a Royal Thai Air Force Base in Nakhon Phanom, Thailand while on active duty service. 4. The Veteran's recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome, is caused by his now service-connected CLL. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for CLL have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). 2. The criteria for entitlement to service connection for DM II have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). 3. The criteria for service connection for recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome, secondary to CLL have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § § 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from March 1966 to January 1970, August 1971 to August 1979, and August 1983 to January 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. SERVICE CONNECTION The Veteran contends that he has CLL and DM II as a result of exposure to herbicides while serving at Nakhon Phanom Thai Air Force Base (RTAFB) in Thailand. See September 2020 Brief. He also provided argument that his recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome, is caused by his CLL. See September 2018 Opinion. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA has determined that certain diseases, including CLL and DM II, are deemed associated with herbicide exposure. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307, 3.309(e). Such identified diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307(a)(6), 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. See 38 C.F.R. § 3.309(e). VA has also determined that U.S. Air Force Veterans who served on RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. To benefit from a presumption of herbicide exposure at one of the previously mentioned air bases, a Veteran must have served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. Additionally, under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement ot service connection for CLL 2. Entitlement to service connection for DMII Upon review of the evidence of record, the Board finds that service connection is warranted for CLL and DM II due to presumptive herbicide exposure. At the outset, the Veteran's post-service medical records reflect that he has been diagnosed with CLL and DM II, which are among the conditions associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). See September 2018 Opinion. Thus, the relevant question is whether the Veteran was exposed to herbicides during his active duty service. In this regard, the Veteran's service personnel records include a performance report which reflects that he was at Nakhon Phanom RTAFB from October 1, 1972 to June 30, 1973. This is within the presumptive period of between February 28, 1961 to May 7, 1975. See August 2018 Military Personnel Record. In an August 2018 statement the Veteran recounted various times when he was exposed to the perimeter areas of Nakhon Phanom RTAFB. He noted that his living quarters were approximately 1000 feet from the perimeter of the base. He wrote that he was exposed to the perimeter of the base when he was first given a tour of the base and in his duties of resolving a supply issue. The Veteran's DD-214 confirms an MOS of inventory management specialist during this time frame. The Veteran noted that he frequently visited a restaurant which was located near the main gate of the base. The Veteran also wrote that he spent time along the flight line to resolve supply issues. In support of the proximity of the flight line to the perimeter of the base, the Veteran provided a map from the Air Force Historical Research Agency, which reflected that the flight line was within the 500 meter air drift zone as defined by the "U.S. Army Field Manual 3-3, Tactical Employment of Herbicides." See April 2020 Correspondence. In November 2018, VA found that the Defense Personnel Records Information Retrieval System (DPRIS) showed that unit histories did report not report of the locations of the barracks or the barracks proximity to the base perimeter at Nakhon Phanom RTAFB. The history was negative, and did not report on or discuss, the Veteran or other personnel being exposed to herbicides while performing their daily duties. Although there is no record of assignment specifically to perimeter duty at Nakhon Phanom RTAFB and VA was unable to confirm the daily duties of the Veteran or the proximity of the barracks to the perimeter of the base, the Board finds the Veteran's assertions regarding time spent near the perimeter of the base at Nakhon Phanom RTAFB to be both competent and credible. As there is no basis on which to question the credibility of the Veteran's reports of visiting the perimeter of the base in the course of his duties and when visiting a restaurant near the main gate, while stationed at Nakhon Phanom RTAFB and no evidence in the record to contradict his assertions of perimeter contact, the Board will resolve reasonable doubt in the Veteran's favor and finds that the Veteran was exposed to herbicide agents while he was stationed at Nakhon Phanom RTAFB during the Vietnam era. Affording the Veteran the benefit of any reasonable doubt, the Board finds that he was exposed to herbicides while serving in Thailand and that his CLL and DM II can be presumed to be related to herbicide exposure in service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for his CLL and DM II is granted. 3. Entitlement to service connection for recurrent pulmonary nocardiosis Upon review of the competent evidence of record, the Board finds that secondary service connection is warranted for recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome, due to service-connected CLL. The evidence reflects that the Veteran has a diagnosis of recurrent pulmonary nocardiosis, bilateral lung disease, and acute respiratory distress syndrome. See September 2018 Opinion and May 2020 VA Examination. Accordingly, the Board finds that the first element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. Moreover, as noted above, the Veteran is now service connected for CLL. Thus, the second element of secondary service connection is also established. See id. The remaining question is whether there is a nexus, or link, between the Veteran's service-connected CLL and his recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome. In a reasoned September 2018 opinion, a VA infectious disease physician wrote that complications of the Veteran's CLL included recurrent pulmonary nocardiosis, bilateral lung disease, and acute respiratory distress syndrome. She opined that the infections occurred as a direct result of his CLL and its treatments. The infectious complications did not occur in others with normal immune systems but were frequently severe in people with leukemia and on chemotherapy agents, which she noted the Veteran was currently undergoing. The opinion is adequate as it is based on an actual factual premise and is supported by a full rationale. A May 2020 VA examiner provided an opinion only as to whether the disability is related to service and not to the CLL. As such, the opinion is not relevant to the question at hand. Given the above, the Board is left with a singular adequate medical opinion which is in favor of the Veteran's claim of secondary service connection. The competent and probative evidence of record supports a finding that the Veteran's recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome was caused by his service-connected CLL. Therefore, service connection for recurrent pulmonary nocardiosis, to include bilateral lung disease and acute respiratory distress syndrome, is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.