Citation Nr: 1221056 Decision Date: 06/15/12 Archive Date: 06/22/12 DOCKET NO. 08-18 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE 1. Entitlement to service connection for non-Hodgkin's lymphoma, to include the recurrence of primary cutaneous B-cell lymphoma of the scalp. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for a convulsive disorder. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that denied the claims captioned above. In November 2010, the Board remanded the matter to the RO for additional evidentiary development. The case was then returned the Board for further appellate action. Upon review, the Board determined in April 2012 that a medical opinion from a health care professional in the Veterans Health Administration (VHA) of the Department of Veterans Affairs was necessary to address the complex medical questions raised by the appeal. 38 C.F.R. §20.901(a), (d) (2011). An opinion was received in May 2012 from a VHA medical expert. Although this evidence was not considered by the RO, a waiver of RO jurisdiction by the Veteran is not required under such circumstances. See 38 C.F.R. §§ 20.903(a), 20.1304(c) (2011). FINDINGS OF FACT 1. The Veteran's non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp, as likely as not is related to exposure to JP-4 jet fuel during service. 2. The Veteran's migraine headaches and convulsive disorder are shown to be as likely as not secondary to his non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp. CONCLUSIONS OF LAW 1. The Veteran's non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp disability, was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. The Veteran's migraine headaches are proximately due to or the result of service-connected non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). 3. The Veteran's convulsive disorder is proximately due to or the result of service-connected non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp, which he contends is the result of exposure to JP-4 "jet fuel" in service. The Veteran also seeks service connection for two other disorders, migraine headaches and a convulsive disorder, which he contends are related to the recurrence of his lymphoma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). The Board notes that VA amended its regulation pertaining to secondary service connection, effective October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). The Board's duty is to assess the credibility and competency of all material evidence to determine its probative weight. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In making all determinations, the Board must also fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. A. Non-Hodgkin's Lymphoma The Veteran contends that service connection is warranted for non-Hodgkin's lymphoma. After careful consideration of the evidence, the Board finds that service connection is warranted for this disorder, for the following reasons. First, the Veteran explained in written statements submitted in support of his claim that his duties during service as a tactical aircraft maintenance specialist included frequent handling of JP-4 fuel. The Veteran wrote that he worked on the flight line almost daily during service, and that on the flight line, he breathed in fumes of the jet fuel and had no protection from skin contact. The Veteran's service records do not document exposure to jet fuel during service. Nonetheless, the Board finds that his assertions in this regard are competent and credible evidence of such exposure, and that such exposure is consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); Dalton, 21 Vet. App. at 36; see also Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Second, the pertinent post-service medical records show that the Veteran initially was diagnosed with non-Hodgkin's lymphoma of the scalp in 1993, at age 34, and that he was diagnosed with a recurrence of non-Hodgkin's lymphoma in 1998. He underwent radiation therapy for this condition in 1993 and 1998. In early 1999, he was again seen for recurrent non-Hodgkin's lymphoma of the scalp per bone marrow biopsy. In August of that year, it was noted that his primary cutaneous B-cell lymphoma of the scalp was in complete remission following definitive total electron beam therapy. This condition remained in remission until November 2001 when he developed a left frontal mass that was diagnosed as radiation necrosis. He underwent a left frontal craniotomy for the mass lesion in 2005. He also underwent a craniectomy with bone biopsy of the left parietal area in March 2006. In January 2006 he was diagnosed with syringoid eccrine carcinoma of the scalp, which was characterized as a "rare neoplasm." He underwent excision of this lesion in April 2006. These medical records unequivocally establish the existence of a present disability. See Davidson, 581 F.3d at 1316. Finally, in support of his assertion that he developed non-Hodgkin's lymphoma as a result of exposure to JP-4 fuel, the Veteran submitted a Material Safety Data Sheet, which he obtained from the internet, which identifies benzene as a component of JP-4 fuel. According to this Data Sheet, benzene is a known human carcinogen. He also submitted information from the Lymphoma Foundation of America which suggests that benzene is one of the solvents most frequently found to be associated with the development of lymphoma. Such evidence indicates that there is a causal relationship between his non-Hodgkin's lymphoma and exposure to JP-4 jet fuel during service. See Davidson, 581 F.3d at 1316. Most persuasively, the Board obtained an expert medical opinion in May 2012. This medical expert, a VHA Chief of Hematology and Medical Oncology, reviewed the matter and rendered a favorable opinion. In particular, this medical expert found that it is at least as likely as not that the Veteran's non-Hodgkin's Lymphoma, including recurrence of primary cutaneous B-cell lymphoma, is related to his service in the Air Force, specifically his presumed exposure to JP-4 jet fuel, which is known to contain benzene. The medical expert explained that numerous epidemiological and animal studies have demonstrated an association between occupational exposure and non-Hodgkin's lymphoma. The medical expert cited a specific study from March 2007. The medical expert then went on to explain that the topical area of exposure in this Veteran's case and the unusual nature of his lymphoma enhance the likeliness of the association. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp, is warranted. The claim is therefore granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Migraine Headaches and Convulsive Disorder The Veteran also contends that service connection is warranted for migraine headaches and a convulsive disorder secondary to his non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp. The Board again finds that service connection is warranted for these disorders, for the following reasons. First, as discussed above, the Veteran's non-Hodgkin's lymphoma is found to be a result of the circumstances of his service. Thus, there is evidence of a service-connected disability. See Wallin, 11 Vet. App. at 512. Second, the record before the Board includes evidence of current disabilities manifested by migraine headaches and a convulsive disorder. See id. Regarding the claimed migraine headaches, private medical records include an otolaryngologic examination from September 1999, which shows complaints of intermittent headaches, swelling of the upper right eyelid, and retroorbital pain. After examining the Veteran, the otolaryngologist was unable to determine the cause of the Veteran's symptoms. On follow-up with the oncology department in October 1999, it was noted that ophthalmologic evaluation had identified no etiology for the Veteran's headaches; his headaches were determined to be of uncertain etiology, but were noted to have developed following radiation therapy and to chronologically appear to be related. A follow-up otolaryngology consultation in March 2000 resulted in an assessment of headaches possibly associated with radiation therapy for B-cell lymphoma. Beginning in July 2000, it was found that his headaches qualified as migraines, and he was given medication accordingly. On follow-up consultation with his neurology clinic in December 2001, his headaches were identified as basilar migraines, with a history of chronic daily headaches. Later treatment records reflect ongoing management of his headaches in the context of his cancer treatment. (A private treatment note from April 2006, however, indicates a childhood history of migraines). Regarding the claimed convulsions, a private neurology record from November 2001 shows treatment for symptoms of a focal seizure that occurred earlier in November 2001. It was noted that the focal seizure became secondary generalized, and had been determined to be related to a left frontal lesion noted on an magnetic resonance imaging scan (MRI) examination. The lesion had been biopsied, revealing changes consistent with radiation necrosis. Meningeal disease was suspected, but ruled out in December 2001. On follow-up with the neurology clinic in January 2002, it was noted that seizures were being treated with Depakote, but that the Veteran continued to have "unusual spells." He additionally complained of tremors, which were found most likely to be secondary to Depakote. In March 2002, a different neurologist concluded that the Veteran's "unusual episodes" did not specifically sound like seizure activity, although he was unable to characterize these events exactly. A January 2003 oncology record shows complaints of a "twitch." Likewise, a March 2003 oncology note shows consultation for symptoms that "sound[] like near syncope," but which "do not fit any specific neurologic disorder." According to a March 2005 neurosurgery note, the Veteran had undergone ophthalmologic workup, including carotid ultrasound, echocardiogram and TEE, for suspected transient ischemic attack, but this testing was negative. The Veteran then had a second seizure in September 2005, and it was noted on consultation in October 2005 that he had not always taken his medication. The Board finds that these medical records unequivocally establish evidence of current disabilities manifested by migraine headaches and a convulsive disorder. See Wallin, 11 Vet. App. at 512. Finally, the evidence of record also includes medical nexus evidence establishing a connection between these disorders and the Veteran's non-Hodgkin's lymphoma. See Id. In particular, as indicated, the Board referred the matter for an expert medical opinion, which was received in May 2012. The VHA Chief of Hematology and Medical Oncology, cited above, who reviewed the matter issued a favorable opinion. Specifically, this medical expert opined that it is as likely as not that the Veteran's headaches and convulsive disorder are proximately due to, the result of, or are caused by his non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp. The medical expert cited specific treatment records to support these conclusions. In light of this record, the Board finds that the evidence is at least in a state of relative equipoise in showing that the Veteran's migraine headaches and convulsive disorder are as likely as not secondary to his non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp. Accordingly, service connection is warranted, and the claims are granted. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Here, the disposition above is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision in this matter has been accomplished. ORDER Service connection for non-Hodgkin's lymphoma, to include recurrence of primary cutaneous B-cell lymphoma of the scalp, is granted. Service connection for migraine headaches is granted. Service connection for a convulsive disorder is granted. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs