Citation Nr: 1304977 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-42 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for autoimmune disease, to include non-Hodgkin's lymphoma and/or Wegener's granulomatosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1968 to March 1970. Service in the Republic of Vietnam is demonstrated by the evidence of record. This matter is before the Board of Veterans' Appeals (the Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which in pertinent part, denied the Veteran's service-connection claim for non-Hodgkin's lymphoma. In August 2010, the Veteran testified at a personal hearing which was chaired by the undersigned Veterans Law Judge at the Board's offices in Washington D.C. A transcript of the hearing has been associated with the Veteran's VA claims folder. In July 2011, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning the nature and etiology of the Veteran's autoimmune disorder. In August 2011, the Board received the requested VHA opinion. The Veteran submitted additional argument in response to this medical opinion in an October 27, 2011 brief, which has been associated with the claims folder. In November 2011, the Board remanded the matter on appeal to the RO (via the Appeals Management Center (AMC)) for additional development. Specifically, the Board instructed the RO to obtain outstanding records associated with disability benefits from the Social Security Administration (SSA). FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era, and his exposure to herbicide agents, to include Agent Orange, is presumed. 2. The preponderance of the medical evidence does not show that the Veteran has been diagnosed with non-Hodgkin's lymphoma. 3. The medical evidence of record does not show any autoimmune disease until more than three decades after the Veteran's period of service. 4. The preponderance of the medical evidence is against a finding that any autoimmune disease, to include Wegener's granulomatosis, is causally related to his period of active service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for autoimmune disease, to include Wegener's granulomatosis, have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted above, the Board remanded the Veteran's claim in November 2011 for evidentiary development. The Board instructed the agency of original jurisdiction (AOJ) to request copies of the Veteran's medical records from the Social Security Administration (SSA), and to seek the Veteran's assistance in identifying and obtaining all pertinent treatment records dated that were not already on file. The AOJ was then to readjudicate the Veteran's claims. The Appeals Management Center (AMC) requested the Veteran's SSA medical records and those records have been associated with the claims folder. In addition, the AMC sent the Veteran a letter in November 2011 asking him to identify any outstanding records of pertinent treatment. The Veteran did not respond. Finally, the AMC readjudicated the Veteran's claim in July 2012 supplemental statements of the case (SSOC). Thus, the Board's remand instructions have been fully complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and under Dingess by a letter mailed in November 2007. Subsequently, in August 2008, the RO adjudicated the Veteran's claim in the first instance. The Veteran filed a timely appeal as to this rating decision. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his service-connection claim for an autoimmune disease. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and identified VA and private treatment records have been obtained. VA has also obtained copies of the medical records and decisions associated with the Veteran's SSA disability benefits. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his cervical spine condition currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. The Board has also obtained a VHA medical opinion in August 2011, the results of which will be discussed below. The report demonstrates that the medical examiner reviewed the evidence of record and rendered an appropriate opinion based on the question presented by the Board. This opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. Therefore, the Board finds that the evidence of record is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim]. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he has been afforded the opportunity to testify before a member of the Board in August 2010. Accordingly, the Board will address the claim on appeal. Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Certain chronic diseases may be presumptively service-connected if manifested to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). A veteran who, during active military, naval, or air service, served 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 the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039(Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167(1999). Presumptive Basis for Service Connection In this case, the Veteran seeks entitlement to service connection for an autoimmune disease, to include as due to exposure to herbicide agents while he was stationed in Vietnam. The Veteran's exposure to herbicide agents is presumed. The Veteran's service records shows that he was stationed in the Republic of Vietnam for one year, and that he was a recipient of the Vietnam Service Medal and Vietnam Campaign Medal. The Veteran service in the Republic of Vietnam was after January 1962 and prior to May 1975. Thus, his exposure to herbicide agents is presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). With inservice exposure to herbicide agents, service connection is presumed for conditions identified as related to such exposure and itemized at 38 C.F.R. § 3.309(e). However, the Veteran's current diagnosed disorder, autoimmune disease, ANCA-associated vasculitis, Wegener's granulomatosis, is not among the conditions itemized at 38 C.F.R. § 3.309(e) and recognized as a disease for which presumptive service connection is available on the basis of herbicide exposure. The Board is cognizant that the lay and medical evidence reflects a provisional diagnosis of non-Hodgkin's lymphoma. See private treatment records from Portsmouth Regional Hospital dated in December 2003 and January 2007. However, subsequent diagnostic testing ruled out a diagnosis of lymphoma and confirmed a diagnosis of ANCA-associated vasculitis, Wegener's granulomatosis. See private treatment records from Massachusetts General Hospital, dated March 2007 through October 2007; see also July 2010 private medical statement from Dr. T.P.C., and August 2010 private medical statement from Dr. J.L.N. In fact, the Veteran does not denied that he has a current diagnosis of Wegener's granulomatosis. Instead, the Veteran asserts that he was informed by his treating private physician that that non-Hodgkin's lymphoma and Wegener's granulomatosis are essentially indistinguishable in diagnosis and treatment. See the Veteran's June 2009 RO hearing transcript, page 3. The Veteran has submitted general medical literature that demonstrates that the prescription medication, Rituxan, used to treat his Wegener's granulomatosis, is also used to treat non-Hodgkin's lymphoma. However, the fact that two diseases are treated with the prescription medication does not make them indistinguishable from each other. Moreover, the August 2011 VA examiner's medical opinion that these disorders are unrelated and distinct. The VA examiner supports his medical conclusion with a lengthy and comprehensive four paragraph statement in which he identifies the clinical and pathological differences between Wegener's granulomatosis and non-Hodgkin's lymphoma. See the August 2011 VHA medical opinion report, pages 1 and 2. As the weight of the probative evidence shows that the Veteran has Wegener's granulomatosis rather than non-Hodgkin's lymphoma, and VA regulations do not provide for the award of service connection for Wegener's granulomatosism on a presumptive based on in-service herbicide exposure, service connection on a presumptive basis is not warranted. See 38 C.F.R. § §3.307, 3.309(e). Direct Basis for Service Connection Notwithstanding the inapplicability of the regulations pertaining to presumptive service connection, the Board is obligated to fully consider the Veteran's claim on a direct basis. See Combee, 34 F.3d at 1039. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. It is undisputed that the Veteran currently has ANCA-associated vasculitis, Wegener's granulomatosis type. Accordingly, Hickson element (1) is satisfied. With respect to Hickson element (2), the Board will separately address in-service disease and injury. Concerning disease, the Veteran does not contend that he developed ANCA-associated vasculitis, Wegener's granulomatosis during service or within the one year presumptive period found in 38 C.F.R. § 3.309(a). The record indicates that he was initially diagnosed with leukemia in 2006, approximately 36 years after separating from service. Concerning in-service injury, the Veteran's service records show that he served in the Republic of Vietnam during the Vietnam era. It is therefore presumed that the Veteran was exposed to herbicides agents in Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Therefore, the second Hickson element has arguably been met with respect to in-service injury. The remaining question presented in this case, i.e. the relationship, if any, between the Veteran's diagnosed disorder and his military service, to include his presumed exposure to herbicide agents. As this question is essentially medical in nature, the Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this regard, the record contains three statements from medical professionals that touch and concern the question of a causal relationship between the Veteran's Wegener's granulomatosis and his presumed exposure to herbicide agents. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). Here, the August 2011 VA examiner's medical nexus opinion is the most probative opinion on this issue. The opinion is definitive, based upon a complete review of the Veteran's entire claims files and a review of pertinent medical literature. The VA examiner concluded that it is less likely than not that the Veteran's ANCA-associated vasculitis, Wegener's granulomatosis, is related to his inservice exposure to herbicides, to include Agent Orange. Notably, the VA examiner stated that he could not find a single report in the peer reviewed medical literature that positively associated herbicide exposure to ANCA-associated vasculitis, Wegener's granulomatosis. In light of the foregoing, the Board place great probative weight on the opinions reached by the VA examiner. In contrast, the record contains two medical statements that can be argued to support the Veteran's claim from the Veteran's private treating physicians, Drs. C. and L. In his July 2010 medical statement, Dr. C. confirmed that the Veteran had Wegener's granulomatosis, and that it is "as likely as unlikely that this prior exposure to Agent Orange could be the [etiology] of this disease process." This medical opinion is speculative in nature and does not assist with providing any probative value either for or against the Veteran's claim. Dr. C. did not provide a rationale for his conclusion nor did he cite any medical research to support an etiological conclusion. Similarly, Dr. N., in his August 2010 medical statement, stated that the Veteran's ANCA associated vasculitis is an antibody associated autoimmune disease, which many cases has been found to be due to certain drugs or chemicals. Dr. N. opined that "[w]hile agent orange is not one of the drugs or chemicals that is know to cause this disease, I do not know that it could not be another drug or chemical that could have caused this disease." Dr. N.'s statement is essentially ambiguous in nature, and speculative at best, as to the finding that herbicides is a chemical associated with the progression of Wegener's granulomatosis. Service connection may not be based on a resort to speculation or remote possibility, such as indicated by these opinions. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board notes that findings of a medical professional are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). Therefore, based on the foregoing discussion, the Board finds that the 2011 VA examiner's negative medical nexus opinion is the most probative in this matter and it weighs heavily against the Veteran's claim. The Board has considered the Veteran's own assertions regarding a possible connection between his Wegener's granulomatosis and his inservice exposure to Agent Orange or other herbicide agents. The Board finds that the Veteran's assertions are afforded little probative weight in the absence of evidence that the Veteran has medical training that can provide the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board acknowledges the Court's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. While he is competent to discuss the symptoms and how they occur intermittently over the years, he lacks the medical expertise to diagnose the condition and to relate its etiological origin in service. Moreover, the August 2011 VA examiner's opinion provides medical evidence against a link between the Wegener's granulomatosis and herbicide exposure. In sum, the Veteran does not have a current diagnosed that is recognized under 38 C.F.R. § 3.309(e) as a disease for which presumptive service connection is available on the basis of herbicide exposure. Further, the weight of the evidence is against a finding that the Veteran has an autoimmune disease, to include Wegener's granulomatosis that is related to his service, including in-service exposure to herbicide agents. As such, the preponderance of the medical evidence is against an award of service. Consequently, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim must be denied. ORDER Entitlement to service connection for autoimmune disease, to include non-Hodgkin's lymphoma and/or Wegener's granulomatosis, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs