Citation Nr: 1307785 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-08 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for Hodgkin's disease. 2. Entitlement to service connection for chronic lymphocytic leukemia (CLL). ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to June 1993. These matters come before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO granted the Veteran's petition to reopen a claim for service connection for Hodgkin's disease. The RO then denied service connection for Hodgkin's disease and chronic lymphocytic leukemia. With regard to the claim for service connection for Hodgkin's disease, the claim was originally denied in a January 2003 rating decision. As the Veteran did not submit new and material evidence or a notice of disagreement within a year of this decision, the decision is final. See 38 U.S.C.A. § 7105(b)-(c), (d) (3) (West 2002). However, in an August 2011 rating decision, the RO noted that special review was mandated under Nehmer V. Department of Veterans Affair, regarding CLL, hairy cell leukemia and other chronic B-cell leukemias. Given the liberalization of the law, de novo consideration is appropriate. Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Although the Veteran has claimed the issues of entitlement to service connection for Hodgkin's disease and CLL as due to Agent Orange exposure, the Board will also consider the claims based on exposure to ionizing radiation. In this regard, the Veteran was a nuclear propulsion mechanic and his medical records confirm exposure to ionizing radiation in service. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly. FINDINGS OF FACT 1. The Veteran did not step foot in the Republic of Vietnam during the Vietnam Era. 2. Hodgkin's disease is not among the enumerated conditions for which service connection may be established on a presumptive basis based on exposure to ionizing radiation. 3. CLL is not among the enumerated conditions for which service connection may be established on a presumptive basis based on exposure to ionizing radiation. 4. The Veteran's current Hodgkin's disease was not the result of a disease or injury in service, to include exposure to Agent Orange or ionizing radiation; and there is no evidence that such manifested to a compensable degree within one year following discharge from service. 5. The Veteran's current CLL was not the result of a disease or injury in service, to include exposure to Agent Orange or ionizing radiation; and there is no evidence that such manifested to a compensable degree within one year following discharge from service. CONCLUSIONS OF LAW 1. Hodgkin's disease was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). 2. Chronic lymphocytic leukemia (CLL) was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, VA 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) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in April 2007 the RO notified the Veteran of the evidence needed to substantiate his claims for service connection for Hodgkin's disease and CLL. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran was not afforded a VA examination for Hodgkin's disease or chronic lymphocytic leukemia and no medical opinion has otherwise been obtained. As discussed below, there is no competent evidence that the Veteran was exposed to herbicides during active service and no contention concerning a continuity of Hodgkin's disease or chronic lymphocytic leukemia symptomatology from service to his medical diagnosis of Hodgkin's disease in 1998 six years later, or CLL diagnosed in 2000 eight years later. As the evidence does not indicate that the claimed diseases may be related to service an examination is not necessary. See McLendon, 20 Vet. App. at 83. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Regulations and Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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, 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). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "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 v. Brown, 6 Vet. App. 465, 469 (1994) (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 also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Herbicide exposure A veteran who had active service in the Republic of Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to an herbicide agent during that service. When such a veteran develops Hodgkin's disease or chronic lymphocytic leukemia to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a) (6), 3.309(e) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the Veteran served during the Vietnam Era. However, the record does not show that he served in the Republic of Vietnam or aboard a ship that operated in the waterways of Vietnam. The Veteran's personnel records show that he served on the USS Algerholm during active service in the Navy, with picket duty in the Gulf of Tonkin in 1973. Additionally, he was awarded the Vietnam Service Medal. The Veteran has consistently maintained that he served onboard the USS Algerholm in the Gulf of Tonkin off the coast of Vietnam. His personnel records indicate the same. He has never reported that he set foot on the mainland or served in the inland waters of the Republic of Vietnam. Rather, he has maintained that the ship drew water from the Gulf of Tonkin, which was distilled into drinking water. The Veteran claims that the runoff from the mainland containing Agent Orange ran into the brown waters in Vietnam and then into the Gulf of Tonkin where it in turn entered his drinking water. As previously noted, the issue of service connection for CLL was readjudicated for consideration under the Nehmer decision in August 2011. Under 38 C.F.R. § 3.816, a Nehmer class member is a Veteran who is entitled to disability compensation for a covered herbicide disease. The regulation establishes the effective date of an award of service connection for disease based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). However as noted on VA Form 21-0820, "Report of General Information," dated in February 2011, the Veteran confirmed that he did not serve in the Republic of Vietnam, but served outside the designated borders. Since there was no evidence showing confirmation of service in the Republic of Vietnam or aboard a ship that docked or traveled on the inland waterways, there is no presumption of exposure to herbicides. Moreover, while the Veteran contends that he drank water distilled from the Gulf of Tonkin, from which runoff from the landmass of Vietnam flowed, this is too tenous to enable a finding that the evidence is at least in equipoise as to the question of herbicide exposure. He has submitted no scientific evidence in support of such contentions and his assertion does not appear capable of resolution via a medical opinion without requiring pure speculation. Indeed, without a specific breakdown of the chemical makeup of the drinking water during service, it is highly unlikely that an examiner would have sufficient facts to offer a response. Such development would therefore serve no useful purpose and would simply delay resolution of the claim. Soyini v. Derwinski, 1 Vet.App. 540 (1991). In light of the above, the Veteran cannot be considered a Nehmer class member and the Nehmer Court Orders, are not applicable. While he has provided competent evidence that he could have been exposed to Agent Orange in the manner he described, the Veteran has not reported that he was aware of any specific exposures. There is no other evidence that service off the coast of Vietnam entailed herbicide exposure. In the absence of credible and competent supporting evidence, service connection for Hodgkin's disease or chronic lymphocytic leukemia as due to herbicide exposure is not warranted. Given the above, the Veteran is not entitled to presumptions based on herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. Exposure to ionizing radiation The Board has also considered whether service connection is warranted for Hodgkin's disease and chronic lymphocytic leukemia due to radiation exposure. The Veteran served onboard several nuclear powered ships during his over 20 years of service. Personnel and medical records confirm his exposure to radiation. Service connection for disorders claimed to be due to exposure to ionizing radiation in service can be established in a number of different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a "radiogenic disease." Hodgkin's disease and chronic lymphocytic leukemia are not listed as disorders entitled to presumptive service connection under 38 C.F.R. § 3.309(d). Moreover, these conditions are specifically identified in the regulations as not being considered "radiogenic diseases." See also 38 U.S.C.A. § 1112(c) (West 2002) and thus the procedures under 38 C.F.R. § 3.311 are inapplicable. Although service connection is not possible for the Veteran's Hodgkin's disease and CLL as presumptive conditions for exposure to herbicides or radiation, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis as due to herbicide exposure and radiation is not possible for the Veteran's claimed disabilities, the Board will determine whether service connection is warranted as directly due to active duty service and exposure to herbicides and radiation during service. The record is negative for other competent medical evidence of a link between the Veteran's current Hodgkin's disease and CLL and any incident of active duty service, to include herbicide exposure and radiation exposure. The Veteran's service treatment records include a physical examination in March 1993 shortly prior to retirement, which indicates no physical abnormalities and no significant medical history was reported. Here, there is no evidence that Hodgkin's disease or CLL was manifested in service or to a compensable degree in the first year after service. The Veteran has acknowledged that Hodgkin's disease was not identified until approximately 1998 and CLL until 2000. There is no evidence otherwise linking Hodgkin's disease or CLL directly to service. The Veteran has not reported a continuity of symptomatology and there is no other evidence of continuity. There is also no medical evidence tending to suggest that the current Hodgkin's disease or chronic lymphocytic leukemia is related to service. The Veteran's contentions, while considered, are not deemed competent. While his testimony as to drinking filtered water from the Gulf of Tonkin is accepted, he lacks the scientific background to competently state that such water contained specific chemicals and herbicides. Again, service connection is not warranted in this case. In so finding, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for Hodgkin's disease is denied. Service connection for chronic lymphocytic leukemia is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs