BVA9500247 DOCKET NO. 87-17 608 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES Entitlement to service connection for tumors and lung disease, claimed as residuals of exposure to Agent Orange for purposes of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from January 1942 to October 1945 and from September 1947 to July 1965. This appeal comes to the Board of Veterans' Appeals (Board) from a December 1986 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This decision denied the veteran's claim for service connection of Agent Orange residuals, namely tumors and lung disease. In November 1987, the Board remanded the case for further development. The veteran died on January [redacted] 1988. His spouse submitted a claim for death benefits, claiming service connection for the cause of the veteran's death, in January 1988. The RO granted the claim in March 1988. In May 1991, the RO denied the claim for service connection for non-Hodgkins lymphoma, Warthin's tumors and lung disease, for purposes of accrued benefits. In October 1991 and June 1992, the Board remanded the case for additional development and for consideration of new regulations. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the veteran was exposed to Agent Orange in Vietnam and developed tumors and lung disease as a result of that exposure. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that for purposes of accrued benefits, the evidence supports the claim for service connection for lung disease, but that the preponderance of the evidence is against the claim for service connection for tumors, claimed as residuals of Agent Orange exposure. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran had interstitial lung disease at the time of his death which first manifested during service. 3. The veteran served in Vietnam prior to the Vietnam era, and there is no credible evidence that he was exposed to herbicides during that time. 4. The veteran's tumors were not present during service or within one year of his separation therefrom, and were not shown to be in any way related to service. CONCLUSIONS OF LAW 1. For purposes of accrued benefits, interstitial lung disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121 (West 1991); 38 C.F.R. § 3.303 (1993). 2. For the purposes of accrued benefits, tumors, including Warthin's tumors and non-Hodgkins lymphoma, were not incurred in or aggravated by service, nor may incurrence be presumed. 38 U.S.C.A. §§ 101(29), 1101, 1110, 1112, 1113, 1131, 5107, 5121 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the appellant's claims are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When an appellant submits a well-grounded claim, VA must assist in developing facts pertinent to that claim. Id. The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the appellant is required to comply with 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If the disorder is a specified chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period; the presumptive period for malignant tumors is one year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Finally, based on evidence in the file upon the death of a veteran, his spouse may be paid periodic monetary benefits due and unpaid for a period of one year. 38 U.S.C.A. § 5121. I. Lung disease The service medical records show that the veteran had occasional upper respiratory infections, beginning in 1942. In August 1950, there was some accentuation of the bronchovascular markings; however, there was no definite evidence of pulmonary parenchymal disease. It was noted that sarcoidosis was not ruled out. In August 1953, the veteran's spouse developed tuberculosis. A November 1953 X-ray showed an area of increased density in the middle of the left lung, suggestive of pneumonitis. A chest X- ray in May 1961 revealed a suggested localized perihilar infiltrate and a suggested nodular density inferior to the right hilum. A routine examination of the veteran was negative. A chest X-ray in July 1963 revealed quite prominent pulmonary vascular markings. An inpatient evaluation summary dated in June 1965 indicates a history of pneumonia in 1948 and 1957. It was also noted in the report that the veteran had worked with tuberculosis patients at Fitzsimmons General Hospital. He reported smoking 2-1/2 to 3 packs of cigarettes daily. Service department medical records from 1968 to 1972 refer to the presence of small calcified nodules in the right apex for a number of years. In March 1972, the veteran was examined, complaining of a productive cough. It was noted that a chest X-ray was abnormal, revealing a reticular nodular basilar infiltrate. apparently present since 1963. X-ray reports dating back to 1976 suggest interstitial lung disease. VA X-ray reports dated in November 1981 and March 1982 reveal interstitial lung disease. A VA Agent Orange examination report dated in April 1982 indicates a history of pulmonary tuberculosis, treated and inactive. The examination further revealed interstitial lung disease. A September 1986 VA examination report indicates that the veteran worked in a tuberculosis ward between 1955 and 1956 and had had right upper lung scars dating back to 1964. X-rays revealed a diffuse interstitial infiltrate. The pertinent diagnosis was diffuse interstitial fibrosis and inactive tuberculosis. The Board finds that the evidence supports the claim of service connection for lung disease. Although some of the most persuasive evidence of the manifestations of the veteran's in- service lung disease is found in the historical references in his post-service medical records, such references are consistent. The X-ray reports during service are consistent with those after service. Resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for interstitial lung disease is warranted, for the purposes of accrued benefits. II. Tumors The Board notes that there is no evidence of tumors--including Warthin's tumors and non-Hodgkins lymphoma--during service or within one year of the veteran's separation therefrom. The first evidence of a Warthin's tumor was in March 1977, and the first evidence of lymphoma was in May 1986. Indeed, the appellant has not contended that service connection for tumors is warranted on a basis other than as secondary to Agent Orange exposure. The evidence shows that the veteran served in the Republic of Vietnam from January 1962 to February 1963, prior to the Vietnam Era. See 38 U.S.C.A. § 101(29) (West 1991). Service records show that he served in Rach Gia, Soc Trang, Saigon, and Can Tho during his Vietnam tour. The veteran testified at a hearing at the RO in May 1987 that his duties included field activity in areas sprayed with defoliants. An April 1982 Agent Orange examination report indicates that the veteran alleged that he was sprayed directly on six to eight occasions. It was noted in the report that it was possible that the veteran could have ingested contaminated food or water. Numerous medical records indicate reported exposure to Agent Orange; however, all of these reports are based on the veteran's stated history. There is no medical evidence attributing the veteran's tumors to Agent Orange exposure or to his period of service. A presumption of exposure to herbicides exists for veterans serving in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6). For such veterans, certain specified diseases-- including non-Hodgkins lymphoma--are presumed to be due to such exposure. 38 C.F.R. § 3.307, 3.309. As noted above, the veteran did not serve in Vietnam during the Vietnam era. There is evidence, however, that herbicides were utilized in Vietnam during the veteran's Vietnam tour. Several comments received in connection with the addition of 38 C.F.R. § 3.313 note that herbicide use in Vietnam began in February 1961. See 55 Fed. Reg. 43,124 (1990). Pursuant to the Board's June 1992 Remand, the RO requested the U.S. Army and Joint Services Environmental Support Group (ESG) to provide any records relating to herbicide spraying during the period of the veteran's Vietnam service. ESG conducted a thorough examination of the records involving spray missions conducted prior to the Vietnam era. In February 1993, the ESG responded that "there were no Agent Orange spray missions within" the veteran's areas of operation. Despite the veteran's testimony, there is no credible evidence that he was exposed to Agent Orange during his period of service. To the contrary, the report from ESG specifically states that the veteran was not exposed to Agent Orange. The Board finds that the veteran was not exposed to Agent Orange during service. As such, the preponderance of the evidence is against the claim for service connection for the veteran's tumors. ORDER Service connection for interstitial lung disease for purposes of accrued benefits is granted. Service connection for tumors for purposes of accrued benefits is denied. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.