Citation Nr: 18132301
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-39 007A
DATE:	September 6, 2018
ORDER
Service connection for non-Hodgkin's Lymphoma, as due to exposure to herbicide agents, is granted.
Service connection for diabetes mellitus type II, as due to exposure to herbicide agents, is granted.
REMANDED
Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded.
FINDINGS OF FACT
1. The Veteran had active service in Thailand at the Nakhon Phanom Royal Thai Air Force Base (RTAFB) during the Vietnam era, and the evidence is at least in equipoise that the Veteran’s duties and activities at Nakhon Phanom RTAFB involved service near the perimeter of that facility. 
2. The Veteran has been diagnosed with non-Hodgkin’s lymphoma.  
3. The Veteran has a current diagnosis of diabetes mellitus type II which has been treated by a restricted diet.  
CONCLUSIONS OF LAW
1. Service connection for non-Hodgkin’s Lymphoma, as due to exposure to herbicide agents, is warranted.  38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
2. Service connection for diabetes mellitus type II, as due to exposure to herbicide agents, is warranted.  38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1971 to January 1975.  
These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  
Service Connection
The Veteran claims he is entitled to service connection for non-Hodgkin’s lymphoma and diabetes mellitus type II (DM) as due herbicide agent exposure during his service in Thailand at a RTAFB during the Vietnam Era.  
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; 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. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 
If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including non-Hodgkin’s lymphoma and DM type II, may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service.  38 C.F.R. §§ 3.307(d), 3.309(e).
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)(6)(iii).  
In some limited instances, herbicide agent exposure in Thailand is recognized.  With regard to exposure to herbicides outside of Vietnam, VA’s Adjudication Procedures Manual, states that a special consideration of herbicide agent exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of certain Thailand military bases.  The M21-1 states that if a Veteran served with the Air Force at several RTAFBs, including Nakhon Phanom, during the Vietnam Era and was stationed near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide agent exposure should be conceded.  M21-1, IV.ii.1.H.5.b.
1. Entitlement to service connection for non-Hodgkin's Lymphoma, to include as due to exposure to herbicide agents
The Veteran contends he developed non-Hodgkin’s lymphoma as a result of exposure to herbicide agents during his service in Thailand on a RTAFB.  
Private medical records reflect that the Veteran was diagnosed with non-Hodgkin’s lymphoma in 1997 and was treated with radiation.  Thus, the first element of service connection, a current disability, has been met.  
Therefore, the question before the Board is whether the condition is related to his active duty service, to include his service at the Nakhon Phanom RTAFB.  
In numerous letters and statements to VA, the Veteran has consistently described the circumstances of his service at Nakhon Phanom RTAFB.  He has described his work as an Air Traffic Control Early Warning Operator, which required him to be in a facility approximately 100 yards from the perimeter during all working hours.  The Veteran also noted that he joined two intramural sports teams, football and baseball, while at Nakhon Phanom RTAFB, and that the fields were approximately 100 yards from the perimeter as well, and that the nature of specifically intramural football led him to rolling around in the grass, dirt, or mud of the field.  Further, that he left the base approximately once a week, which took him through the perimeter of the base.  Finally, the Veteran asserted that it was common to hang out, walk or jog, and take smoke breaks next to the perimeter as it was out of the way, a safe distance for smoking away from aircraft, and it was unsafe to jog off-base.  
The Board finds that the Veteran’s service personnel records reflect that he served at Nakhon Phanom Royal Thai Air Force Bases during the Vietnam era, with an arrival at the base in September 1974.  His DD Form 214 also reflects that his military occupational specialty was aerospace control and warning systems operator.  The Veteran is competent to report about the nature of his duties and whether they placed him near the perimeter of the base.  The Board also finds his statements to be credible as they are consistent with his service.  Therefore, the evidence is supportive of a finding that the Veteran’s duties and extracurricular activities would have placed him near the perimeter of the military base.
The above lay evidence is competent and credible, and there is no directly contradictory evidence.  Viewing the evidence of record in a light most favorable to the Veteran, the Board finds that this evidence is at least in relative equipoise regarding the Veteran’s direct exposure to herbicide agents.  As such, the Board concedes the Veteran’s direct exposure to herbicide agents during his active service in Thailand.
As the Board has conceded exposure to herbicide agents in Thailand, the Veteran’s non-Hodgkin’s lymphoma is presumed to be associated with his in-service herbicide agent exposure.  See 38 C.F.R. § 3.309(e).  There is no clear and convincing evidence to rebut this presumption.  As a result, the Board finds that the evidence supports a grant of service connection for non-Hodgkin’s lymphoma on a presumptive basis as a result of herbicide agent exposure.
2. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents
The Veteran contends he developed DM type II as a result of exposure to herbicide agents during his service in Thailand on a RTAFB.  
Private treatment records reflect that the Veteran has been diagnosed with DM type II and that it has been controlled by a restricted diet.  38 C.F.R. § 4.119, Diagnostic Code 7913.  As described above, the Board has conceded exposure to herbicide agents in Thailand, and the Veteran’s DM type II is also presumed to be associated with his in-service herbicide agent exposure.  See 38 C.F.R. §§ 3.307, 3.309(e).  There is no clear and convincing evidence to rebut this presumption.  As a result, the Board finds that the evidence supports a grant of service connection for DM type II on a presumptive basis as a result of herbicide agent exposure.
REASONS FOR REMAND
Entitlement to service connection for hypertension is remanded.
The Veteran also alleges that he is entitled to service connection for hypertension, to include as due to exposure to herbicide agents.  Unfortunately, the Board cannot make a fully-informed decision on the issue of service connection for hypertension because no VA examiner has opined whether the condition is related to his active duty service.  
As described above, the record reflects that the Veteran served at Nakhon Phanom RTAFB during the Vietnam War; therefore, exposure to herbicide agents in service is presumed.  VA regulations do not provide hypertension as a presumptive disability associated with herbicide agent exposure.  The National Academy of Sciences (NAS), in recent Agent Orange updates, including the most recent Update 2014, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide agent exposure.  See VETERANS AND AGENT ORANGE: UPDATE 2014, at 8; see also 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (Dec. 27, 2010).  As there is evidence indicating that there may be an association between hypertension and herbicide agent exposure, a VA opinion regarding this theory must be obtained.
Further, as the record indicates the Veteran receives private treatment, on remand, and with any necessary assistance from the Veteran, treatment records should be obtained and associated with the record.  The record does not reflect VA treatment, but on remand the Veteran should be afforded the opportunity to identify all treatment providers and locations so records can be obtained.  
The matter is REMANDED for the following actions:
1. Send the Veteran correspondence requesting that he identify any private treatment providers or VA treatment for his hypertension.  Request that a completed VA Form 21-4142 be completed for all identified private treatment providers.  Thereafter, obtain and associate with the record any treatment records identified.  
2. After the completion of 1 above, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hypertension.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 
The examiner should provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is due to his period of active service, specifically to include his conceded in-service herbicide agent exposure.
In providing the above opinion, the examiner should address recent NAS Agent Orange updates which have concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide agent exposure. 
The term “at least as likely as not” does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.
The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles.  
If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially 


available information that, if obtained, would allow for a non-speculative opinion to be provided.

 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	LM Stallings, Associate Counsel 

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