Citation Nr: 1230710 Decision Date: 09/07/12 Archive Date: 09/10/12 DOCKET NO. 06-04 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for multiple myeloma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from November 1971 to June 1981 and from May 1982 to September 1992. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California. In April 2009, the Board denied the Veteran's claim of service connection for multiple myeloma. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2011 decision, the Court vacated the April 2009 decision and remanded the matter to the Board for compliance with the Court's decision. In April 2012, the Board requested a VHA medical opinion on the issue of service connection for multiple myeloma. In June 2012, the requested opinion was received. Thereafter, the Veteran waived initial consideration by the RO. Thus, the matter is now ready for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his multiple myeloma is of service origin. CONCLUSION OF LAW Multiple myeloma was incurred in service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A.§§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. see Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). 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. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran is claiming service connection for multiple myeloma on two separate fronts: The Veteran asserts that he has multiple myeloma as a result of his service. Specifically, he asserts that during service in 1991 he handled hazardous materials, to include jet fuel and Benzene. He states that during service he developed lumps on his skin, as well as joint pains, and a sinus condition, and that these were symptoms of his multiple myeloma. He has reported mixing chemicals in 55-gallon drums six days a week, nine to ten hours per day. See e.g., Veteran's letter, dated in July 2007. He has also submitted a picture of himself in uniform with what appear to be 55-gallon drums in the background, as well as a building with the letters "NBC" on it (presumably "nuclear, biological, and chemical"). He also asserts that his bone pain began in 1977, and, in essence, that this indicates that he had multiple myeloma that was present during service. The Veteran further maintains that in the alternative, he developed multiple myeloma as a result of drinking contaminated water while stationed at Camp Lejeune. The Board notes that the Veteran was stationed at Camp Lejeune from February 14, 1972, to March 23, 1972. The Veteran's service records show that his military occupation specialties were primarily combat engineer, general warehouseman/warehouse clerk, and recruiter. Between 1972 and 1975, he primarily served at Quantico, Virginia. Thereafter, he primarily served with aviation units in El Toro, California, and in Tustin, California. The Veteran's service treatment reports show the following: he received treatment for complaints of back pain beginning in 1978, with a notation of symptoms since 1972, and he underwent a left ankle arthrotomy in 1979, with a number of treatments for left ankle symptoms thereafter; In a 1979 Medical Board Report it was indicated that the Veteran had back and neck pain with left lumbar scoliosis. An April 1981 report showed complaints of bleeding and pus at the right nostril, with assessments of rhinosinusitis. In a January 1992 report, it was noted that the Veteran had complaints of small lumps under the skin on his arms, back and stomach, and that he had been working with hazardous material about seven months before. In May 1992, the Veteran was treated for left elbow pain as well as lumps under the skin of his forearms, abdomen, right leg, and back. He was noted to have handled hazardous materials. An undated report indicated that he had multiple joint complaints and "does not appear to have a specific orthopedic problem". On his May 1992 service separation examination report, multiple lipomas were noted on the bilateral forearms and back. A history of a retained screw in the left ankle was reported, and his head and upper extremities were evaluated as clinically normal. The report also indicated that the Veteran's sinuses were TTP (tender to palpation) but there was no evidence of sinusitis. In an associated "report of medical history," the Veteran noted a history of bilateral shoulder injuries, a left elbow injury, ankle surgery, and stated that he had "pressure on top of head." The report also contained notations of lipomas on the forearms and abdomen, and back, and pain in the right maxillary sinus. A December 1981 VA examination report contained diagnoses noting low back pain and scoliosis, left knee arthritis, tenosynovitis of the left ankle, postoperative, and bilateral pes planus. At the time of a November 1992 VA examination, the Veteran complained of left knee pain. A history that included working with unknown hazardous material in 1991 with subsequent lumps on his arms and all over his body was also reported. On examination, the lymphatic and hemic systems were normal. Diagnoses rendered at that time included bilateral pes planus, postoperative left ankle, arthritis of the left knee and spine, and discogenic disease of the lumbosacral spine. A pathology report for multiple mobile subcutaneous lipomas contained a diagnosis of angiolipoma. Private treatment reports associated with the claims folder reveal that the Veteran was determined to have multiple myeloma in April 2004, after he presented with a right (sometimes noted as "left") clavicular fracture, and a right humeral fracture. See e.g., reports from V.C., M.D., dated between 2004 and 2005; and reports from West Anaheim Medical Center, dated in 2004. The findings included multiple lytic bone lesions. Thereafter, the Veteran was repeatedly noted to report symptoms that included bone pain. His treatment included medication, bone marrow aspiration, and radiation therapy. In 2005, he was found to have lytic lesions in the frontal and parietal regions of the skull. In 2008, the Veteran underwent procedures that included a bifrontal craniotomy, biorbital zygomatic osteotomy, resection of clival tumor, and duraplasty. In August 2008, the Veteran was afforded a VA examination. The examiner provided a history of the Veteran's symptoms. The examiner indicated that while the Veteran was exposed to a number of toxic substances during his military service in 1991-1992, it could not be said that this exposure was as least as likely as not to be the cause of his multiple myeloma. He noted that multiple myeloma was a disease whose etiology was unknown and while speculation had been made regarding possible causes, there was a lack of scientific evidence to suggest that the cause is due to chemical exposure. The examiner observed that per a current article in UpToDate "Clinical and laboratory manifestations of multiple myeloma" authored by S. Vincent Rajkumar, MD, he noted that while exposure to radiation, benzene, and other organic solvents, herbicides, and insecticides might play a role "the number of cases is small with each of these risk factors, and the data for chemical exposure is not convincing." He also observed that a number of studies specifically evaluated the possible role of Benzene and the results largely confirmed that benzene did not cause multiple myeloma. He noted that as an example, in a review article in Blood, Vol. 94 No. 4 (August 15) 1999: pp 1174-1182, titled "Benzene and Multiple Myeloma: Appraisal of the Scientific Evidence" by Daniel E. Bergsagel, Otto Wong, P. Leif Bergsagel, Raymond Alexanian, Kenneth Anderson, Robert A. Kyle, and Gerhard K. Raabe, it was noted that while there is evidence to support the role of benzene as a causative factor in acute myelogenous leukemia, regarding multiple myeloma, the following was stated "In contrast, there is no scientific evidence to support a causal relationship between exposure to benzene or other petroleum products and the risk of developing multiple myeloma." He indicated that there was no other evidence specifically linking multiple myeloma to military service in this patient such as the occurrence/excision of angiolipomas. With regard to the Veteran's claims of the development of malignant myeloma as a result of drinking contaminated water while stationed at Camp Lejeune, the Board notes that the Veteran has submitted numerous articles in support of his claim, to include a Report in Brief prepared by the National Academies entitled "Contaminated Water Supplies at Camp Lejeune, also found at http://www.national academies.org/morenews/20090613.html. The Board observes that in June 2011, a VA examiner, a nurse practitioner, prepared a VA examination report with regard to the Veteran's claim for service connection for multiple myeloma, with specific reference to the drinking of contaminated water. The examiner noted that the Veteran's multiple myeloma was less likely as not caused by or as a result of his exposure to contaminated water at Camp Lejeune. He indicated that an extensive review of the information from the National Research Council, the American Chemical Society, the Agency for Toxic Substances and Disease Registry, and the EPA reports of health effects and diseases associated with TCE/PCE/Benzene/Vinyl Chloride had been done by him. He observed the National Research Council's limited/suggestive evidence of an association of TCE and PCE with multiple myeloma. He further noted the CAS study finding that some studies had provided suggestive evidence of an association of benzene exposure and multiple myeloma. He stated that these studies indicated that it was an extended exposure that was the risk factor and that development of the condition and diagnosis could take 10 to 15 years. He indicated that the Veteran's exposure was not extended but rather only about six months. He also observed that the Veteran's multiple myeloma was diagnosed 32 years after his six months at Camp Lejeune. In preparation for the examination report, the examiner was provided with a 7 page document prepared in conjunction with the scheduled examination which cited to numerous articles and websites containing information with regard to the chemical exposure and exposure to contaminated water. The document was prepared in June 2011. Subsequent to the June 2011 VA examination, several letters were received from the Veteran's treating physicians, including letters from Dr. V. C., of the Pacific Cancer Institute, whose medical specialties included oncology. In a November 2011 letter, from the Pacific Cancer Medical Center, authored by A. W., NP, it was indicated that the Veteran was under the care of Dr. C. and her colleagues for the management of multiple myeloma. She noted that they had recently received information regarding water contamination at Camp Lejeune and reviewed the potential side effects of the contaminants. It was their belief that it was possible that the Veteran's exposure to solvents could have contributed to his present malignancy. In April 2012, the Board requested that a VHA opinion be prepared with regard to the claim of service connection for multiple myeloma. The examiner was requested to provide the following opinion following a review of the claims folder: Whether it was at least as likely as not (50 percent probability or greater) that the Veteran's multiple myeloma was related to his period of service, to include, but not limited, to his exposure to contaminated drinking water while stationed at Camp Lejeune in 1972, and/or as result of working with chemicals, to include benzene and jet fuel, while stationed at El Toro Marine Base. Complete detailed rationale was requested for each opinion that was rendered. In June 2012, the requested opinion was prepared by A. E., M.D., a specialist in hematology/oncology. Following a review of the claims folder, Dr. E. indicated that it was clear that the Veteran had been exposed to several toxic substances during his military career and that he carried a diagnosis of multiple myeloma. As to the benzene/jet fuel exposure, she noted that there had been many studies done attempting to determine whether there was a direct link between exposure to benzene and the development of multiple myeloma and other hematologic malignancies. She observed that there was a proven link between benzene exposure and the development of acute myelogenous leukemia. The question regarding benzene exposure and multiple myeloma remained unclear. Dr. E. referenced articles/papers which supported and went against the relationship of a causal link between benzene exposure and multiple myeloma. Following a review of the articles, it was Dr. E's assessment that it was biologically plausible that benzene exposure might cause multiple myeloma. She stated that although several studies had shown evidence that was suggestive of a link, the overall assessment of the current evidence did not yet support a causal link between benzene exposure and the development of multiple myeloma. She observed that it had to be recognized that there were specific challenges with epidemiological studies of this topic due to problems measuring/assessing the level of exposure to toxic substance, the relatively low incidence of multiple myeloma, and the long latency period of myeloma. She stated that recognizing the limitation of available data, she was unable to state that the Veteran's multiple myeloma was more likely than not caused by benzene exposure. She indicated that this remained an active area of research and that it was possible that as more studies became available, the relationship between benzene and multiple myeloma might become more clear. As to the claim of the development of multiple myeloma as a result of drinking contaminated water while stationed at Camp Lejeune, Dr. E. noted that the Veteran was stationed at Camp Lejeune in the early 1970's and was exposed to drinking contaminated water. She noted that the Veteran was stationed there anywhere between 7 and 13 months. She also observed that the Veteran had been evaluated by several VA medical examiners in the past, all who had stated that it was not related. Dr. E. also made reference to several articles which she had reviewed with regard to the toxic substances in drinking water and the development of multiple myeloma. She observed that the current data suggested only "limited/suggestive evidence" of an association between exposures at Camp Lejeune and multiple myeloma. She indicated that based upon this, in addition to the relatively short period of exposure that the Veteran had, she was unable to state that the Veteran's multiple myeloma was more likely than not caused by exposure to contaminated drinking water at Camp Lejeune. She also noted that she would refute the Veteran's claim that the presence of bone pain in 1977 indicated that he had active multiple myeloma during his time in service. She stated that bone pain due to multiple myeloma was due to lytic lesions in the bone, which were not seen on any x-rays reported in his records (1985, 1992). In addition, this would not be consistent with the disease course in myeloma; if lytic lesions (signifying active myeloma) were present in 1977 and went untreated (until diagnosis in 2004) his life expectancy would be much shorter and it is nearly impossible that he would have survived until his diagnosis in 2004. She also indicated that additional data supporting the fact that the Veteran did not have myeloma in 1977 included the absence of anemia and renal insufficiency on blood work drawn in 1992. She noted that although it was possible that the Veteran had MGUS (the precursor to multiple myeloma, which is not associated with bone lesions) at that time, she could say with near certainty that he did not have active myeloma in 1977. For a veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). While the evidence does not overwhelmingly support the grant of service connection for multiple myeloma, it cannot be stated that the preponderance of the evidence is against the claim for multiple myeloma either. The Veteran's service personnel records reveal that he primarily served with aviation units in El Toro, California, and in Tustin, California. The Board notes that the Veteran has indicated that during service in 1991 he handled hazardous materials, to include jet fuel and Benzene. He has reported mixing chemicals in 55-gallon drums six days a week, nine to ten hours per day. Moreover, the Veteran submitted a picture of himself in uniform with what appeared to be 55-gallon drums in the background, as well as a building with the letters "NBC" on it (presumably "nuclear, biological, and chemical"). Furthermore, Dr. E. in her June 2012 report, observed that it was clear that the Veteran had been exposed to several toxic substances during his military career. In addition., Dr. E., in her June 2012 report, noted that there were articles/papers which supported and went against the relationship of a causal link between benzene exposure and multiple myeloma. Dr. E. also stated that it was biologically plausible that benzene exposure might cause multiple myeloma. She further indicated that several studies had shown evidence that was suggestive of a link. While Dr. E. indicated that she could not state that the Veteran's multiple myeloma was more likely than not caused by benzene exposure, she did not indicate that it was not at least as likely as not that the Veteran's multiple myeloma was not caused by benzene exposure (a 50% chance). Moreover, the Veteran's treating physicians indicated that it was their belief that it was possible that the Veteran's exposure to solvents could have contributed to his present malignancy. Based upon the Veteran's conceded exposure (beyond Camp Lejeune), the kind of exposure as well as the duration of his exposure while stationed at El Toro, the statement from Dr. E. that it was biologically plausible that the Veteran's benzene exposure was the cause of his multiple myeloma, the statement from his treating physician's office that the Veteran's exposure to solvents could have contributed to his malignancy, and the possible interpretation of Dr. E's statement to mean (though this is very unclear) that it was at least as likely as not that the Veteran's multiple myeloma was related to his benzene/jet fuel exposure, reasonable doubt must be resolved in the Veteran's favor. The Board has considered whether to remand this case, once again, in an effort to obtain a more authoritative medical causation report (the VHA medical opinion indicated that additional testing [future studies regarding Camp Lejeune Veterans, which would not, however, consider the Veteran's serious exposure to chemicals beyond the drinking water of Camp Lejeune] are being done in this area and that clear causal evidence, or a lack thereof, may soon be available). However, this Veteran cannot wait. Another delay of this case is an effective denial. Given the foregoing, the Board finds that the evidence that the Veteran's current multiple myeloma is related to his period of service, is at least in equipoise. In such a case, reasonable doubt must be resolved in favor of the Veteran. Therefore, service connection for multiple myeloma is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties To Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim. ORDER Service connection for multiple myeloma is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs