Citation Nr: 1325254 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-21 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for mediastinal lymphanodenopathy, also claimed as rhizobium radiobacter, respiratory condition with symptoms of lung infection, mediastinal masses, and lymphanodenopathy with granulomas and necrosis, associated with herbicide exposure and exposure to radiation, cobalt and mercury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty April 1965 to April 1985. He had service in the republic of Vietnam from January 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Waco, Texas. In September 2012, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the proceeding has been associated with the claims file. The Board has reviewed the Veteran's Virtual VA file and has considered all relevant records contained therein in the decision issued below. FINDING OF FACT A respiratory condition manifested by mediastinal lymphanodenopathy, rhizobium radiobacter, respiratory condition with symptoms of lung infection, mediastinal masses, and lymphanodenopathy with granulomas and necrosis, was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides, radiation, cobalt and mercury. CONCLUSION OF LAW Mediastinal lymphanodenopathy, also claimed as rhizobium radiobacter, respiratory condition with symptoms of lung infection, mediastinal masses, and lymphanodenopathy with granulomas and necrosis was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letter dated September 2007 fully satisfied the notice requirements of the VCAA with respect to the Veteran's claim. The notice letter advised the Veteran what information or evidence was needed to support her claims, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The notice letter also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c). All of the available Veteran's service treatment records and VA treatment records have been associated with the claim file. The Veteran has not identified any additional outstanding treatment records for VA to obtain. Therefore, the Board finds that the record contains sufficient evidence to make a decision on the Veteran's claim. Moreover, the Veteran was afforded the opportunity to testify at videoconference hearing in September 2012. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To aid in the development of the Veteran's claim, the Board requested a Veterans Health Administration (VHA) specialist's opinion in January 2013 which was received by the Board in February 2013. The VHA specialist's opinion reflects that he reviewed the entire claims file and provided adequate reasoning for his conclusions. It also reflects that he addressed all of the questions posed by the Board in its request. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Legal Criteria and Analysis The Veteran seeks service connection for mediastinal lymphadenopathy (also claimed as rhizobium radiobacter, respiratory condition with symptoms of lung infection, mediastinal masses, lymphadenopathy with granulomas and necrosis), to include as due to herbicide exposure and exposure to radiation, cobalt, and mercury. The Veteran has set forth various theories of entitlement in support of his claim. First, he asserted that he was exposed to radiation while conducting x-rays in service and while on guard duty close to one of the nuclear weapons sites in Germany. The Veteran also reported that he was exposed to mercury on the battlefield. He explained that he used to squeeze mercury into a little cloth and mix it with the amalgam that goes into the teeth. To remove the mercury, he used his hands and he believes that the mercury went through his hands into his internal organs. The Veteran reported that he was also exposed to cobalt while performing his duties as a dental assistant and on guard duty. Moreover, the Veteran indicated that he had been told in the past that his condition could be due to exposure to bacteria in jungle-type areas in Vietnam or Germany. Further, the Veteran asserted that he was exposed to Agent Orange or herbicides while serving in Vietnam, which could have caused his condition. The Veteran's DD Forms 214 reflect that he worked as a dental specialist/hygienist and as a medical specialist/assistant during service. The claims file contains a Record of Occupational Exposure to Ionizing Radiation. Additionally, one of the Veteran's DD Forms 214 reflects that he had over 11 months of foreign service in the Republic of Vietnam during the period of January 1967 to March 1970. As such, exposure to herbicides in service is conceded. A. Factual Background The Veteran has reported that he first began having problems with his condition post service when he underwent a CAT scan for intestinal colon cancer, which showed spots in his lungs. He claims that these spots were biopsied and found to be a type of bacteria or disease that had calcified in his lungs. A review of the post-service medical evidence reflects that the Veteran was diagnosed with colon cancer in 2004. A May 2007 scan was significant for mediastinal and hilar lymphadenopathy. In May 2007, the Veteran underwent a cervical mediastinoscopy and was diagnosed with mediastinal lymphadenopathy. In a June 2007 treatment record, it was noted that, with regard to the rhizobium species, there have been few cases of bacteremia with this organism mostly related to intravenous catheters. The examiner further noted that it was unclear what the process was causing granulomas at this time but noted that he was not able to identify that rhizobium did this in humans. In a July 2007 treatment record, it was noted that the Veteran had a CME consistent with rhizobium infection that was treated with Levaquin for 3 months. In a separate July 2007 treatment record, it was noted that a CT guided biopsy of mediastinal nodes was negative for TB and also for fungus, but what did grow was rhizobium, for which the Veteran had been on Levofloxacin since May. In an April 2008 treatment record, the Veteran was noted as having infective granuloma. This record noted that the Veteran had a history of exposure to agent orange, asbestos, radiation, and mercury. The Veteran underwent a VA examination in April 2008. The examiner noted that the Veteran was diagnosed with adenocarcinoma of the colon in 2004, for which he had surgery. The Veteran reported that he was found to have a white spot in his lungs, which was thought to be a fungal infection. In his past history, the Veteran reported that he was in Vietnam in 1969 and 1970. He was also in Germany during the 1960's, during which he reported that he was exposed to cobalt, mercury, and x-ray radiation as a dental assistant. Currently, he has symptoms aside from his gastrointestinal symptoms. He has coughing of dry cough daily. He reported that he has had this cough for many years. He was never a smoker. He also stated that he has difficulty sleeping and pain on urination. He had a PET scan and biopsy of the lungs in May 2007, in which there was a finding of mediastinal nodes in the lungs and the biopsy showed rhizobium radiobacter, which is a gram negative rod and has responded well to Levaquin for 3 months. He had a chronic process in the lungs with infiltrate at times that was cleared with Levaquin. The other findings are also necrotizing granuloma. Currently, he has no treatment for his lung condition. Upon examination, the Veteran was diagnosed with mediastinal lymphadenopathy. The examiner determined that the Veteran's respiratory condition is not caused by or as a result of exposure from x-ray radiation, cobalt, or mercury as a dental assistant during his military service. The examiner noted that it has been many years since his active service from 1965 to 1985, and he had no acute process in his lungs. His chest x-ray shows no infiltrate in 2004, 2005, and 2006. His findings on his chest x-ray reports were found not until lately in 2004 when he was diagnosed with adenocarcinoma of the colon and also finding was mediastinal lymphadenopathy of the lungs diagnosed by a PET scan and a biopsy in 2004 and has responded very well to the Levaquin. In a July 2008 treatment record, the Veteran was noted as being status post right lung lesion diagnosis bacteria+. In a September 2009 treatment record, it was noted that the stable uptake and size in the lymph nodes of the right peripharyngeal region, left neck, mediastinum, and both hilar regions suggested benign disease in the chest most likely due to granulomatous disease. In an October 2009 treatment record, it was noted that the Veteran sought consultation for 2008 isolation rhizobium on mediastinal aspirate. It was noted that the Veteran was diagnosed with rectal cancer in 2004. He had recurrent cancer around 2007. In 2008, PET scan imaging showed multiple nodules and biopsy of mediastinum was done. Pathology labeled January 2009 fine needle aspirate of lymph node only showed reactive cells. It was noted that this reportedly was the source of the diagnosis of rhizobium, usually of plant pathogen. The Veteran received less than four weeks of Levaquin from a private infectious disease physician. The Veteran denied cough, dyspnea, pleurisy, fever or night sweats. A January 2009 PET scan showed stable uptake in the bilateral lung nodules compared with August 2008, consistent with granulomatous process. A CT showed maximum size was 9 mm and calcification was described in mediastinal adenopathy. In a July 2011 treatment record, it was noted that the Veteran had multiple hypermetabolic lymph nodes in the left neck, in the mediastinum, in the hilar regions, in the pericaval region, in the periaortic region, and in the portohepatic region. Some areas showed improved SUV uptake or unchanged SUV uptake. It was noted that many of the mediastinal lymph nodes showed increasing SUV uptake, which may be due to active granulomatous disease. It was also noted that multiple nodular densities and interstitial changes were seen throughout both lungs but particularly in the upper lobes with increased FDG uptake, suggestive of active inflammatory or granulomatous disease. A VHA specialist's opinion was requested in January 2013 and received in February 2013. The pulmonary expert noted that the Veteran worked primarily as a dental hygienist and as a medial specialist/assistant during his time in the service. He noted the Veteran claims exposure to radiation from dental roentgenograms and guard duty dear an area where nuclear arms were sorted. He claims exposure to mercury during his work as a dental assistant. He further noted that he was more likely exposed to agent orange. The specialist reviewed the claim file and noted the pertinent facts and historical development of the claimed condition. Thereafter he provided the requested opinions. He noted that rhizobium radiobacter is a common soil organism and is most noteworthy for infecting plants leading to crown gall disease. He noted that human disease by rhizobium radiobacter is extremely rare and has found less than 50 cases in existence. Most of the cases involve both profound immunosuppression and intravascular catheters. There are no cases of mediastinal disease or lymphadenitis reported. Therefore, the specialist concluded that Rhizobium radiobacter was likely a contaminant and not an actual infection. He further stated that if the Veteran had a Rhizobium radiobacter infection, since the organism is ubiquitous and not limited to Southeast Asia or Germany, the likelihood of acquiring the organism while in the service can be estimated by dividing the number of years in service by the years of life, and he believes that it is unlikely that the Veteran developed this infection while in service. It is more likely than not that he acquired the organism while not in the service. Finally, he stated that Rhizobium radiobacter was most likely a contaminant and if there was an actual infection, it was a temporary acute disease process. The Veteran received an effective therapy and if there was an actual infection, it is unlikely related to service. Regarding the hilar and mediastinal adenopathy, the specialist noted that it was asymptomatic at the time it was discovered and that it was discovered while the Veteran was being evaluated for colon cancer. At the time it was discovered, imaging studies indicate a calcification of the lymph nodes and this is a feature of a chronic disease process. The possible causes include granulomatous infections such as tuberculosis, non-tuberculous mycobacterial infection, histoplasmosis, blastomycosis, Cryptococcus infection and coccidioidomycosis. He noted that at times infections causes of adenopathy show lymphadenopathy with calcifications long after the infection has been eliminated by the immune system. He noted other causes of necrotizing granulomatous inflammation in mediastinal lymph nodes includes necrotizing sarcoidosis. The specialist went on to note that no diagnosis was ever established. He noted it is uncommon to pursue the diagnosis mediastinal adenopathy, after a non-malignant biopsy if there are minimal symptoms and the lymph nodes are not changing radiographically. At this point, one can only speculate about what caused the Veteran's adenopathy. Of the possibilities, he stated, blastococcus and coccidioidoses exist only in the Americas. The other possible infections have worldwide distribution. There are no fungal organisms that cause this pattern of lung disease that are unique to either South East Asia or Europe. Due to the small portion of the Veteran's life he spent in the service, it is more likely than not the adenopathy began while not in service. He concluded by stating that the mediastinal and hilar adenopathy is a chronic disease process or residual of a granulomatous infection earlier in the Veteran's life. The only symptoms that may be due to the adenopathy is his chronic non-productive cough. Therefore, it is more likely than not he acquired this disease while not in service. There is no reason to believe his active service aggravated this condition. Finally, regarding the exposure to Agent Orange, radiation, mercury and cobalt during service, the specialist opined that it is unlikely any of these exposures contributed in any way to any of the conditions in question. B. Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has alleged that his lung condition is due to exposure to herbicides in service. Applicable law provides that a veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116. Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) 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 disease consistent with chloracne; 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); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The Veteran has also claimed that his lung condition is due to exposure to radiation in service. There are three ways to establish service connection for a condition claimed to be attributable to ionizing radiation exposure. See 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. §§ 3.309(d), 3.311 (2012). First, VA has identified certain diseases in 38 C.F.R. § 3.309(d)(2) that are presumed to be the result of radiation exposure with regard to certain "radiation-exposed veterans" defined in paragraph (d)(3) of the regulation. See also 38 U.S.C.A. § 1112(c) (West 2002). The Board acknowledges that the record reflects that the Veteran served as a dental technician in service. The Board notes, however, that his service as a dental technician does not meet the definition of a "radiation exposed veteran" for purposes of the presumptive service connection provisions of 38 C.F.R. § 3.309(d). Furthermore, the Board notes that the Veteran is not claiming any condition listed among the diseases for which presumptive service connection may be granted under 38 C.F.R. § 3.309(d)(2) even if he did constitute a "radiation exposed veteran" for purposes of the regulation. Second, when a "radiogenic disease" listed in 38 C.F.R. § 3.311(b)(2) first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1) (2012). Specifically, VA must request certain radiation dose information and then refer the claim to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(a)(2) and (b)(1) (2012). "38 C.F.R. § 3.311(b) does not provide presumptive service connection for 'radiogenic diseases.' Rather, it outlines a procedure to be followed in adjudicating a claim for service connection for such diseases." Ramey v. Brown, 9 Vet. App. 40, 45 (1996), affirmed sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). The Board notes that mediastinal lymphadenopathy is not among the list of the radiogenic diseases identified in 38 C.F.R. § 3.311(b)(2), and there is no competent evidence otherwise suggesting that his claimed disability constitutes radiogenic disease. In this regard, the Board has considered the Veteran's history of having worked as a dental technician and medical assistant. Certainly, the Board recognizes that someone need not be a physician to possess some level of medical knowledge so as to render a competent medical opinion. See Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the Board finds that the Veteran's limited medical training and experience is not sufficient to render him competent so as to offer an opinion on such a complex matter as whether his claimed disability is related to radiation exposure. In reaching this conclusion, the Board has considered the statements submitted by the Veteran throughout this appeal, and finds it significant that he has not demonstrated any particular expertise or knowledge in the area of radiogenic diseases so as to support a finding of competency on the matter. Therefore, the Board finds that the development procedures set forth in 38 C.F.R. § 3.311 are not applicable. See Ramey, supra. Nevertheless, if a disease may not be service-connected under the presumptive provisions of 38 C.F.R. § 3.309 or under the procedures set forth in § 3.311, a veteran is not foreclosed from proving direct service connection. See Combee, supra. C Analysis When the evidence of record is reviewed under the laws and regulations as set forth above, the Board finds there is no basis for granting service connection for mediastinal lymphadenopathy in this case. As noted above, presumptive service connection is not warranted under the provisions for exposure to herbicides or exposure to radiation. Indeed, mediastinal lymphadenopathy is not one of the disabilities for which presumptive service connection is warranted for exposure to herbicides or radiation. Moreover, the Veteran has not been diagnosed with any of the disabilities for which presumptive service connection is warranted under 38 C.F.R. § § 3.307, 3.309 or 3.311. The Board will now address whether the Veteran has mediastinal lymphadenopathy that is related to service on a direct basis. See Combee, supra. At the outset, the Board notes that the Veteran's service treatment records do not show evidence of pertinent symptomatology consistent with mediastinal lymphadenopathy or any other respiratory condition manifested during service, nor does the medical evidence demonstrate such symptomatology was manifested within one year of separation from service. The Veteran does not contend otherwise. The Board notes that there is a lack of competent medical evidence indicating an etiological relationship between mediastinal lymphadenopathy and any other diagnosed condition including rhizobium radiobacter infection, mediastinal masses and lymphadenopathy with granulomas and necrosis, and the Veteran's active duty service. In this regard, the Board notes that the April 2008 VA examiner and the March 2013 VHA specialist's opinion both state that the Veteran's respiratory disability is not due to service. The April 2008 VA examiner provided reasoning for the opinion rendered. The VHA specialist's opinion was very detailed, provided a detailed reasoning for all opinions rendered, and addressed each of the claimed diagnosis, to include rhizobium radiobacter, hilar and mediastinal adenopathy and the granulomatous infection. The specialist provided an explanation of the conditions and a reason as to why none of the conditions were due to service. The specialist acknowledged the reported exposure to herbicide, radiation, mercury and cobalt in service, but still found no correlation between service and any of the identified conditions. The opinions of record, including the VHA specialist's opinion, stand uncontradicted by any other competent opinion of record. They are adequate in that they were based on a review of the claim file, consideration of the reported history, and provided a complete rationale for the opinions provided. The Board therefore, places great probative weight on the opinions. The Board has considered the Veteran's statements and his testimony at the September 2012 hearing wherein he states that his disability is due to service to include either exposure to herbicides or radiation. As noted, the Board has also considered the Veteran's history of having worked as a dental technician and medical assistant. Nevertheless, while the Board recognizes that his assertions are of some probative value, the Board ultimately places more weight on those of the VHA examiner, who has clearly possesses a greater degree of specialized knowledge and training. In summary, the Board concludes that the preponderance of the evidence is against finding a link between the Veteran's service and mediastinal lymphadenopathy, to include exposure to herbicides, radiation, mercury or cobalt. Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Accordingly, service connection must be denied. ORDER Service connection for mediastinal lymphanodenopathy, also claimed as rhizobium radiobacter, respiratory condition with symptoms of lung infection, mediastinal masses, and lymphanodenopathy with granulomas and necrosis, to include as due to exposure to herbicides, radiation, mercury and cobalt, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs