93 Decision Citation: BVA 93-03751 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-06 152 ) DATE ) ) ) THE ISSUE Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for claimed lymphocytic lymphoma has been submitted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD V. Jordan, Counsel INTRODUCTION The veteran had active service from May 1964 to May 1968, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of August 1991, from the Buffalo, New York, Regional Office. The notice of disagreement was received in September 1991. The statement of the case was issued in November 1991. The substantive appeal was received in February 1992. The appeal was received at the Board and docketed in April 1992. The appellant is represented by the Disabled American Veterans in this matter. The only issue developed for appellate consideration is that of entitlement to service connection for lymphocytic lymphoma. For reasons set forth below, we construe the veteran's claim to include entitlement to service connection for lymphoid hyperplasia, claimed as a residual of exposure to Agent Orange. Final regulations with regard to this disability have not been promulgated. Accordingly, this issue is referred to the originating agency for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has lymphocytic lymphoma as a result of exposure to Agent Orange. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. FINDING OF FACT The veteran does not have lymphocytic lymphoma. CONCLUSION OF LAW The veteran has not presented a well-grounded claim for service connection for lymphocytic lymphoma, claimed as a residual of exposure to Agent Orange. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION It is argued that the veteran has lymphocytic lymphoma as a result of exposure to Agent Orange. The evidence shows that lymphocytic lymphoma was diagnosed in 1974; however, subsequent records demonstrate that this diagnosis cannot be supported. The question of whether the veteran has lymphocytic lymphoma was the subject of a written statement, dated December 7, 1992, by William O. Bailey, M.D., Board Medical Adviser. Dr. Bailey summarized the facts as follows: The veteran was born in April 1947 and served on active duty from May 1964 to May 1968. He is not service connected for any condition. The Department of Veterans Affairs (VA) rating dated August 23, 1991, stated that lymphocytic lymphoma is not shown. His enlistment physical examination in April 1964 was within normal limits according to the record. His separation physical examination in May 1968 showed no abnormality. There were no findings or history consistent with lymphocytic lymphoma or lymphoid hyperplasia during or within one year after service. The record contains a biopsy report dated May 10, 1974, from Our Lady of Lourdes Hospital, Inc., Binghamton, New York, and signed by Sermasook Komes, M.D., Associate Pathologist. This gives a diagnosis of a lymph node from the right groin area as being lymphocytic lymphoma, moderately differentiated (Nodular Type). A report dated May 16, 1974 from William D. Wood, M.D., Pathologist of Our Lady of Lourdes Hospital, gives a diagnosis of normal bone marrow. A VA rating, dated September 15, 1975, lists nonservice-connected diagnoses of chronic asthmatic bronchitis at 10 percent disability and lymphocytic lymphoma at 100 percent disability with a combined nonservice-connected rating of 100 percent. Further reports from Our Lady of Lourdes Hospital, Inc., dated December 6, 1977, are signed by Sermasook Komes, M.D., Associate Pathologist. One is a bone marrow biopsy report with a diagnosis of hypercellular marrow with moderate myeloid hyperplasia. Another is a report of the biopsy of an axillary lymph node by Dr. Komes with a diagnosis of reactive lymph node with pigmented granule, no evidence of recurrent lymphoma. Another biopsy report of the lymph nodes, this time of the right groin and dated April 24, 1979, is by Dr. Komes, again from Our Lady of Lourdes Hospital. This diagnosis is chronic lymphadenitis with reactive hyperplasia. A bone scan from Our Lady of Lourdes Hospital, Inc., dated February 5, 1980, is reported as showing two foci of abnormal intake in the left lower rib cage anteriorly, most likely post-traumatic, and uptake in the right ankle related to old traumatic injury. A chest X-ray report from that hospital, dated June 10, 1980, states that there was prominence of the left hilum but no active pulmonary disease and no significant change since January 31, 1980. Two days later a Gallium scan, again from Our Lady of Lourdes Hospital, states that there was increased uptake in the right inguinal area. This report states that either a tumor or localized inflammation may present in this manner. A progress note from the same hospital, dated June 26, 1980, states that a recent biopsy of the right inguinal gland showed only reactive hyperplasia with no evidence of recurrence of Hodgkin's lymphoma. The record contains a biopsy report from Our Lady of Lourdes Hospital, dated June 17, 1980, and signed by Simon Hirschl, M.D., Pathologist. The diagnosis listed is hyperplastic reactive lymphadenopathy. He had reviewed the previous lymph node biopsy and it had shown the same change. He had also reviewed an earlier biopsy of an axillary lymph node and this had shown benign reactive lymphadenopathy with the presence of anthracotic pigment and sinus histiocytosis. Review of the bone marrow aspiration and biopsy showed normal cellular marrow. Review of the first lymph node biopsy from the inguinal region showed similar histological appearance to that of the most recent biopsy. Dr. Hirschl, in this note, stated further that the presence of a relatively high number of plasma cells and plasmablasts in each biopsy indicates that this patient most likely had an immune reaction involving the lymphatic system. He added that the etiology is nonspecific. The record contains a VA medical certificate dated October 1, 1980. This states that the veteran had been sick since 1974 with "lymphatic lymphoma." He had had surgery three times in the right groin and once in the left axilla. He had been on chemotherapy consisting of Cytoxan, prednisone, and Vincristine in serial dosages for the duration of two years, the last chemotherapy being in 1976. Examination reported at the time of this medical certificate was that the axilla was tender but no mass could be defined. There was slight tenderness in the right upper quadrant and somewhat more tenderness in the left upper quadrant. The liver was palpable about 3 centimeters below the right costal margin. The spleen was questionably tender and there was tenderness for 6 centimeters below the area of the spleen. Total white blood count was 23,300 and complete blood count was otherwise within normal limits. Erythrocyte sedimentation rate, SMA-6 profile, chest X-ray, and an X-ray of the kidney, urinary area and bladder were within normal limits. In the record, a VA hematological clinic progress note, dated October 31, 1980, states that a review of the biopsy slides indicates an appearance consistent with reactive lymph node and not nodular poorly differentiated lymphoma as diagnosed in 1974. The veteran was complaining of occasional night sweats with chills and fever and chest pain of 1 1/2 years' duration with the pain being dull in character and radiating to the left arm, occasionally to the neck. Physical examination revealed slight erythematous appearance to the throat. There was a 1-centimeter diameter lymph node palpable in the region of the angle of the jaw which was freely movable; another in the right axilla, 1 cm. x 1 cm. in size; another in the left axilla, 1.5 cm. x 1.5 cm. in size; and numerous small inguinal nodes were palpable. The lungs were clear to percussion and auscultation. The abdomen was nontender and no hepatosplenomegaly was present. A VA examination performed on November 7, 1980, revealed the following lymph nodes to be palpable: Left mandible, 1 X 1 centimeter, hard, nontender, mobile; left axilla, 2 X 2 centimeters, hard, nontender, mobile under the biopsy site; right axilla, 1 X 1 centimeter and the same as the preceding; right and left inguinal nodes, small, hard, mobile and numerous. The liver was reported to be 4 centimeters below the right costal margin and the spleen not palpable. A letter dated November 20, 1980, is signed by Stephen A. Ladaw, M.D., Ph.D., Associate Chief of Staff, VA Hospital. This states that (a) the veteran was diagnosed in 1974 at the Lourdes Hospital as nodular, moderately differentiated lymphocytic lymphoma on the basis of a lymph node biopsy; (b) cancer chemotherapy was done at Lourdes and additional biopsies there read as negative for cancer (reactive lymphadenopathy); another biopsy in 1980 was negative and read as very similar to that seen in the most recent biopsy; (c) the veteran was seen at Syracuse VA Medical Center since January 10, 1980. The original biopsies had been sent to VA Medical Center and read by the pathologist as negative for malignancy. Dr. Ladaw, in his letter, states that it was known that some underlying abnormality was causing the night sweats and enlarged lymph nodes but they were unable to make the diagnosis. In October 1982, the Board of Veterans' Appeals denied service connection for lymphocytic lymphoma secondary to exposure to Agent Orange. A VA examination was given the veteran on March 9, 1983. The report of this examination states that in 1974 lymphoma, Hodgkin's type, was discovered and confirmed on biopsy. Since that time, the veteran had had a multitude of complaints but 79 further biopsies had failed to reveal any recurrence of Hodgkin's disease. It indicated that he had also had repeated chest X-rays, chest scans, and Gallium scans, all of which were negative. The examination revealed a few tiny lymph nodes palpable in the neck; a few small lymph nodes in the right axilla; and small nodes in both groins and a scar on the right groin. The diagnoses listed: recurrent asthmatic bronchitis; status post treatment Hodgkin's disease, nine years without evidence of recurrence at the end of five. The record contains a VA pathological report dated June 14, 1991, and signed by H. Richard Hellstrom, M.D. This lists the diagnoses as (I) benign lymphoid hyperplasia; (II) bone marrow biopsy showing prominent granulocytic hyperplasia; (III) bone marrow biopsy showing granulocytic hyperplasia; (IV) lymphoid hyperplasia; (V) bone marrow, no pathological diagnosis; (VI) benign lymphoid hyperplasia, prominent; (VII) benign lymphoid hyperplasia, prominent. The following is included in that report, "Note: Because of the controversy in this case, the case will be sent to the SUNY Health Science Center for consultation." A surgical consultation report from the Syracuse University, New York, Health Science Center (SUNY), Syracuse, New York, bearing the signature of Byed Zamen, M.D., and David M. Humphrey, M.D., and also has a notation that these slides were also seen by Silvio Litovsky, M.D., and Robert E. Hutchison, M.D. The diagnosis given for each of these slides is lymphoid hyperplasia: Lymph node, site not identified, biopsy; lymph node, right groin, biopsy; lymph node, right inguinal, biopsy. It was also stated that three bone marrow biopsies revealed no pathological diagnosis. On July 8, 1991, a VA examination was given and the impression recorded for this examination ended with, "I think the diagnosis of non-Hodgkin's lymphoma needs to be altered to just benign lymphoid hyperplasia; ....." Dr. Bailey concluded: 1. The veteran was diagnosed by lymph node biopsy in 1974 as having lymphocytic lymphoma, moderately differentiated (nodular type). 2. A course of chemotherapy which lasted two years was given for that condition. 3. Subsequent lymph node biopsies were diagnosed as benign lymphoid hyperplasia, reactive hyperplasia, reactive lymphadenopathy, hyperplastic reactive lymphadenopathy, reactive lymph node, or lymphoid hyperplasia. These terms are essentially synonymous with each other. 4. "Collectively the inflammatory-immune reactions that cause lymphadenopathy are called 'reactive lymphoid hyperplasias'"--"Reactive lymphoid hyperplasias are traditionally placed into one of two nosologic groups: The lymphadenitides, primarily inflammatory reactions, and the lymphadenopathies, primarily immune reactions." Griffith R C, Janney C G. Hematopoietic system: bone marrow and blood, spleen, and lymph nodes in Anderson's Pathology. Ninth ed. 1990. 1433. "Persistent antigenic stimuli will inevitably induce hyperplasia of the constituent cellular components of the lymph node resulting in its enlargement." Ibid. 1434. 5. The veteran has benign lymphoid hyperplasia, a non-neoplastic condition, which began many years after service. It is not malignant and bears no relation to a lymphoma, a malignant type of tumor. The threshold question to be answered in this case is whether the appellant has presented a well-grounded claim for service connection for lymphocytic lymphoma, that is, one which is plausible or meritorious. If he has not, his appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1991). After review of the evidence, the Board is of the opinion that it is not shown that the veteran has lymphocytic lymphoma. While such diagnosis was entered in 1974, reexamination of the slides obtained at that time and thereafter have been determined to represent benign lymphoid hyperplasia. This determination was reached by reviewing pathologists at VA, Syracuse University, and SUNY. In the absence of evidence showing that he has lymphocytic lymphoma, his claim is not plausible. Therefore, it is not well grounded. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, although the evidence submitted may be new, there is no basis on which to reopen the claim for service connection for lymphocytic lymphoma. ORDER Service connection for lymphocytic lymphoma is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * C. P. RUSSELL JACK W. BLASINGAME *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.