Citation Nr: 0815605 Decision Date: 05/13/08 Archive Date: 05/23/08 DOCKET NO. 05-41 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for multiple myeloma as secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from September 1963 to December 1963 and from February 1964 to November 1967. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of April 2005 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in Nashville, Tennessee which denied the claim on appeal. In March 2007, the veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO (Travel Board hearing). A transcript of this hearing is associated with the Board. In September 2007 and again in February 2008, the Board referred this case to the VA's Veterans Health Administration (VHA) for a medical opinion. The specialist's opinion, dated January 18, 2008, has been associated with the claims folder and, as required by law and regulation, the Board provided the appellant and his representative copies of this opinion and afforded them time to respond with additional evidence or argument. 38 C.F.R. § 20.903(a) (2007). The case is now before the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran was exposed to Agent Orange while serving in Vietnam. 2. The medical evidence reflects that the veteran's postoperative plasmacytoma is a variant of multiple myeloma, and is likely related to his Agent Orange exposure. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, postoperative plasmacytoma/multiple myeloma is due to herbicide exposure in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection The veteran contends that he developed a cancer, diagnosed as plasmacytoma as a result of exposure to Agent Orange in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to prevail in a claim for direct service connection, there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in- service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For veterans who had service of ninety (90) days or more during a war period or peacetime service after December 31, 1946, and any chronic disease such as cancer, is manifest to a compensable degree within a year thereafter, there is a rebuttable presumption of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In addition to the forgoing, the Board observes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transit peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309 (e), Note 2. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, presumption is not the sole method for showing causation in establishing a claim for service connection as due to herbicide exposure. Service medical records are silent for any evidence suggestive of onset of a plasmacytoma or any other malignant pathology in service. A June 1964 chest X-ray was negative. He underwent multiple examinations, including a January 1963 entrance examination, December 1963 separation examination, a January 1964 entrance examination, a December 1966 transfer examination, a September 1967 aircrewman examination and a November 1967 separation examination, with none of these examinations revealing any evidence suggesting the precence of cancer. Likewise, accompanying reports of medical history from January 1963, January 1964, December 1966, or September 1967 revealed him to deny any tumor, cyst or cancer. The veteran's DD-214 for his second period of service from February 1964 to November 1967 reflects service in Vietnam, as he received the Vietnam Service Medal and Vietnam Campaign Medal with device. Thus exposure to Agent Orange is conceded. The earliest evidence of cancer was shown in November 2004, when he was being treated for a stroke, and a chest X-ray was abnormal, revealing a left apical mass with destruction of the first rib. He subsequently underwent a computed tomography (CT) scan of the chest the same month with findings that included left apical extra pulmonary/pleural based mass, considerations to include plasmacytoma versus neurogenic tumor arising from the intercostal nerve, and associated first rib destruction. In December 2004, after undergoing biopsy of the left upper lobe mass, the veteran was diagnosed with plasmacytoma. He underwent further testing and consults, including hematology oncology consult to rule out multiple myeloma, with bone marrow biopsy and full workup done in December 2004. In January 2005, following review of the results, including the results of bone marrow biopsy, the impression was that the veteran had an isolated plasmacytoma without multiple myeloma. He continued to be diagnosed with an isolated plasmacytoma of the lung in February 2005, with no evidence of systemic disease according to a record from that month that recommended radiation to the chest lesion. The March 2005 radiation oncology record likewise reviewed in detail the results from the previous testing from November through December 2004 and confirmed an impression of solitary plasmacytoma of the left rib. He underwent external beam radiotherapy in March through April 2005, which provided minimal response. In May 2005, the tumor was deemed to have not responded to the treatment as a plasmacytoma usually does. The veteran underwent a second biopsy of the left chest wall in July 2005, which was diagnosed as plasmacytoma with amyloid deposition. There continued to be no systemic evidence of multiple myeloma. In January 2006, the veteran underwent a left thoractomy with excision of plasmacytoma. Findings from this surgery revealed no evidence of malignancy of the left third rib, and residual plasmacytoma of the left lung apex and left first rib. A follow up in March 2006 from Social Work revealed the veteran to state that his treating doctors, Dr. C., from thoracic surgery and a Dr. K., from radiation oncology advised him that his plasmacytoma is the same as multiple myeloma and that he should apply for service-connection for this condition. The social worker advised that the veteran should obtain a letter from these doctors verifying this. A follow-up note in August 2006 showed no evidence of recurrent disease on CT scan. In a July 2006 letter, Dr. C., opined that solitary plasmacytoma of the bone is a true variant of multiple myeloma, after discussing in detail the veteran's history surrounding his lung tumor diagnosed as plasmacytoma. Dr. C., stated that there was no such thing as a solitary plasmacytoma but that all of these patients would eventually develop multiple myeloma. Dr. C., expressed the opinion that the veteran's solitary plasmacytoma tumor should be compensable under the Agent Orange act as a variant of multiple myeloma. The veteran testified at a Travel Board hearing in March 2007, wherein he and his representative alleged that the plasmacytoma he was diagnosed with is essentially a precursor to multiple myeloma and that it would eventually develop into multiple myeloma. He also submitted a number of articles that supported this argument. He testified about serving in Vietnam, where he believed he was exposed to Agent Orange. A January 2008 VHA opinion responded to etiology questions posed by the Board regarding the veteran's residuals of post- operative plasmacytoma as secondary to Agent Orange exposure. First the examiner discussed the assembled factual evidence of record in detail. This included the findings from a November 2004 CT scan that showed a left apical/extrapulmonary/pleural based mass with associated left rib destruction. A CT scan guided biopsy done in December 2004 revealed plasmacytoma, a cancerous collection of plasma cells. Tumor cells were positive for kappa light change, typical of a plasmacytoma or multiple myeloma. Bone marrow biopsy done the same month showed no evidence of multiple myeloma as did serum studies. Both were evidence that the tumor was localized, not widespread. Accordingly, radiation therapy treatment was applied and was appropriate. However, there was limited response of the tumor to radiation therapy. The external beam radiation was noted to have been completed in April 2005 with minimal response and he had resection of the chest wall plasmacytoma in January 2006 and the surgical margins were positive for tumor and again consistent with the diagnosis of plasmacytoma. In general, plasmacytoma is considered part of a spectrum of presentations of neoplastic disorders known as plasma cell dycrasias often generically called "multiple myeloma." A plasmacytoma is a relatively large tumor mass of neoplastic plasma cells generally involving or arising out of bone whereas typical multiple myeloma is a widespread collection of smaller tumors of similar neoplastic cancer cells within the bone. In this examiner's opinion, and that of current oncological literature, this patient's cancer falls within the spectrum referred to as multiple myeloma. The examiner later reiterated in response to a subsequent question that while there may be semantic distinctions, given the fundamental biology, clinical management and clinical outcome, the veteran's plasmacytoma is essentially that of multiple myeloma. Having determined that the veteran's cancer is multiple myeloma, the examiner next addressed the question of whether there are any current residuals of the postoperative plasmacytoma. The examiner responded that the veteran has documented residual in that the tumor margins were not free of tumor. He will likely have recurrence at the site of resection and be subjected to more widespread dissemination of the process with time. The examiner opined that it is highly unlikely the veteran's current residuals of post-operative plasmacytoma began in service, or was directly incurred or aggravated by active military service and there was no evidence to this effect. However, the examiner did opine that it is more likely than not that the veteran's residual plasmacytoma is and should be considered associated with the documented exposures to Agent Orange while in the military service. The examiner discussed the findings from the latest National Academy of Sciences Institute of Medicine in its Veterans and Agent Orange Update 2004 which suggested an association between Agent Orange Exposure and multiple myeloma in making this conclusion. Based on a review of the evidence, the Board finds that the evidence supports a grant of service-connection for the veteran's plasmatocytoma residuals as the medical evidence in the form of the January 2008 VHA opinion has confirmed that this specific type of cancer in fact falls within the spectrum referred to as multiple myeloma. The opinion further stated that it is more likely than not that the veteran's residual plasmacytoma is and should be considered associated with the documented exposures to Agent Orange while in the military service. There is no medical evidence to clearly contradict this conclusion, and in fact this conclusion is supported by the opinion from Dr. C., of July 2006, who also expressed the belief that the veteran's plasmacytoma was a variant of multiple myeloma and should be compensable under the Agent Orange program. The Board further notes that multiple myeloma is a disease that is presumptive to Agent Orange under 38 C.F.R. § 3.309. Thus, service-connection is warranted for the veteran's plasmatocytoma residuals as a form of multiple myeloma. ORDER Service connection for multiple myeloma as a result of exposure to Agent Orange is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs