Citation Nr: 1122869 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 09-02 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for follicular lymphoma, including as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from October 1956 to August 1958. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in December 2010. FINDINGS OF FACT 1. The Veteran was not exposed to ionizing radiation in service. 2. Follicular lymphoma was not manifested during service or until many years thereafter. 3. Follicular lymphoma was not caused by chemical or petroleum products exposure during service. CONCLUSION OF LAW Follicular lymphoma was neither incurred in nor aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the duty to assist, the Veteran's available service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran's STRs have been certified as being fire related, but copies of all damaged records have been associated with the claims folder. Pursuant to remand by the Board, the RO arranged for a VA medical opinion regarding the possibility of a relationship with radiation or chemical exposure during service. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not alleged that the examination is inadequate and it is presumed to have been so. Sickels v. Shinseki, No. 2010-7140 (Fed. Cir. May 6, 2011). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the claim. Service Connection for Follicular Lymphoma Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as malignant tumor, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device, or presence at certain gaseous diffusion plants during certain periods. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). The second avenue for service connection is through 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service connected if VA's Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). Lymphoma is a radiogenic disease. 38 C.F.R. § 3.309. The third avenue for service connection is through medical evidence showing that exposure to ionizing radiation in service actually caused the claimed disorder. See Combee 34 F.3d at 1042. See 38 C.F.R. § 3.303(d) (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). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran contends that service connection should be established for follicular lymphoma. His primary contention is that this developed as the result of exposure to what he asserts was ionizing radiation while he served at a nuclear storage warehouse where nuclear shells were maintained. He stated that he was exposed to what he thought was radiation from these shells while helping to fight a fire at the warehouse. He has also contended that his lymphoma was the result of chemical exposure that he had while on active duty. Review of the available STRs shows no complaints or manifestations of a malignant tumor. Post-service treatment records first demonstrate a lymphoma in 2004, many years after separation from service. There is no medical evidence of record that demonstrates that the lymphoma was related to service. After a thorough review of the evidence, the Board finds that the Veteran was not exposed to ionizing radiation during service. As such, his lymphoma cannot be considered to have been the result of such alleged exposure. In a February 23, 2011 memorandum, the Director of Compensation and Pension service offered the advisory opinion that, following review of the evidence in its entirety, there was no reasonable possibility that the Veteran's lymphoma could be attributed to ionizing radiation while in military service. This advisory opinion was based on the fact that no records of the Veteran's exposure to ionizing radiation were found, and the conclusions and opinion of the Director of the VA Environmental Agents Service (Radiation and Physical Exposures) that the Veteran was not exposed to ionizing radiation during service, and an opinion was that the Veteran's lymphoma was not due to claimed exposure to ionizing radiation (or other chemicals) during service. Regarding the Veteran's contentions related to radiation exposure, the Veteran's MOS of auto maintenance helper does not suggest radiation exposure, and, notwithstanding the Veteran's statement that he was guarding "atomic cannon shells," he did not have knowledge of any ionizing radiation exposure during the 1957 fire, but only asserts this as a theory of entitlement. A May 2008 memorandum from the Department of the Army indicates that the U.S. Army Dosimetry Center had been unable to locate any records of the Veteran's exposure to ionizing radiation, which is evidence reflecting that the Veteran's occupation did not expose him to ionizing radiation. In response to a February 4, 2011 memorandum from the Director of the VA Director of Compensation and Pension, a VA physician, the Director of the VA Environmental Agents Service (Radiation and Physical Exposures) submitted a February 17, 2011 memorandum regarding the Veteran's occupational exposure to ionizing radiation and other chemical agents. The opinion was that the Veteran was not exposed to ionizing radiation as part of his daily duties during service, or also during a 1957 fire while guarding "atomic cannon shells," which did not in fact involve a release of radioactive material. The Director of the VA Environmental Agents Service reviewer reasoned that, had the Veteran been exposed to ionizing radiation as part of his daily duties in service, he would have a record of occupational exposure; the Veteran's MOS of auto maintenance helper did not suggest ionizing radiation exposure; the Veteran did not allege a release of radioactive material during the 1957 fire; and research of official records did not reflect a nuclear incident of this type during 1957. For these reasons, the Director of the VA Environmental Agents Service concluded that the Veteran was not in fact exposed to radiation while in military service, and, accordingly, opined that it was not likely that the Veteran's lymphoma could be attributed to the ionizing radiation exposure during service. Regarding the Veteran's contentions of occupational exposure to gasoline and diesel fuel and the development of lymphoma, the Board finds that the weight of the competent evidence demonstrates that the Veteran's lymphoma is not related to his occupational exposure to gasoline and diesel fuel during service, claimed generally as "chemical" exposure. The February 17, 2011 memorandum by the Director of the VA Environmental Agents Service (Radiation and Physical Exposures) notes that the most recent published study on the risk of lymphoma and occupational exposure to gasoline and petroleum products found no evidence across an extensive literature that such exposure to gasoline at the levels workers experience in an occupational setting increases the risk of lymphoma. The VA Director of the VA Environmental Agents Service relied on the reason that studies among persons employed in the downstream petroleum industry had found no positive associations between gasoline and petroleum exposure and lymphoma. The Director of the VA Environmental Agents Service opined that it was not likely that the Veteran's lymphoma was caused by exposure to chemicals, including gasoline and diesel fuel. As to the Veteran's contention regarding exposure to gasoline and other petroleum products during service, the February 17, 2011 opinion of the Director of Environmental Agents Service, that the most recent published studies do not show such a relationship, is the only opinion of record regarding a possible nexus. As the evidence does not include a competent opinion of nexus to service to support a relationship, service connection on this basis must be denied. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for follicular lymphoma, including as claimed to be due to exposure to ionizing radiation, and as claimed to be due to other chemical exposure in service that includes gasoline and petroleum exposure, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for follicular lymphoma is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs