Citation Nr: 1308891 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-27 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for multiple myeloma. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to multiple myeloma. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to multiple myeloma. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to multiple myeloma. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to multiple myeloma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO), at the RO, in lieu of a hearing before the Board. A copy of the hearing transcript is associated with the claims file. In May 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to obtain outstanding treatment records and to afford the Veteran a VA examination. The AMC completed those actions in compliance with the May 2011 Remand order and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to chemicals during service, to include benzene and carbon tetrachloride. 2. The Veteran has current multiple myeloma. 3. The Veteran's current multiple myeloma is etiologically related to his exposure to benzene and carbon tetrachloride in service. 4. The Veteran has a current diagnosis of bilateral upper and bilateral lower extremity peripheral neuropathy. 5. The bilateral upper and bilateral lower extremity peripheral neuropathy are proximately due to the multiple myeloma. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for multiple myeloma have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for peripheral neuropathy of the bilateral upper extremity and bilateral lower extremity have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.310, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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), 3.326(a) (2012). The claims of service connection for the conditions listed above have been considered with respect to VA's duties to notify and assist. Given the favorable outcome adjudicated herein, no conceivable prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations 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. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the disorders at issue are multiple myeloma (a malignant tumor) and peripheral neuropathy (other organic disease of the nervous system), which are considered "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as multiple myeloma and peripheral neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 498. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002); Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Also, a veteran can attest to factual matters of which he or she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal, 5 Vet. App. at 461; Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Multiple Myeloma The Veteran claims that he developed multiple myeloma as a result of exposure to certain chemicals during service. While the Veteran served during the Vietnam era, the evidence does not reflect, nor does the Veteran contend, that he served in the Republic of Vietnam. He has not claimed that his multiple myeloma is due to exposure to herbicides during service. In this regard, presumptive service connection for multiple myeloma as due to herbicide exposure (including the factual question of whether the Veteran had service in the Republic of Vietnam) is not at issue and will not be further discussed. After a review of all the evidence of record, lay and medical, the Board first finds that the evidence is in equipoise on the question of whether the Veteran was exposed to chemicals during service, to include benzene and carbon tetrachloride. Evidence that supports this finding includes the Veteran's DD Form 214, which indicates that his military occupational specialty (MOS) was equivalent to a civilian specialist in radio mechanics. In a July 2009 statement, the Veteran wrote that, as part of his in-service duties, he had to clean electronic circuit boards with both benzene and carbon tetrachloride. He also wrote that, during service, he flew as a radio operator on "Hurricane Hunter" flights. After each flight, the crewmembers were required to wipe the wings and engines of the planes free of oil. The Veteran stated that he did not wear any gloves or other protective gear in performing such duties. In this respect, the Board notes that the Veteran is competent to state what his duties specifically entailed in service, including cleaning with benzene and carbon tetrachloride. Indeed, his contentions are consistent with his MOS of a radio mechanic who would ostensibly encounter such chemicals during the course of his service duty. Evidence which tends to weigh against a finding of exposure to chemicals in service or that multiple myeloma had onset in service are the Veteran's service treatment records. These records reveal the absence of complaints, findings, treatment, or diagnosis of multiple myeloma during service or any indications of chemical exposure in service. Such evidence weighs against a finding of in-service chemical exposure or multiple myeloma symptoms. The evidence is also unclear as to how much exposure to particular chemicals the Veteran experienced during his four-year term of service; however, the Veteran has presented credible testimony indicating some exposure to chemicals during active duty. Given the evidence is in equipoise and with consideration of the benefit-of-the-doubt rule, the Board will resolve reasonable doubt to find that the Veteran was exposed to benzene and carbon tetrachloride during service. The Board finds that the Veteran has a current disability of multiple myeloma, which is defined as a disseminated type of plasma cell dyscrasia characterized by multiple bone marrow tumor foci and secretion of an M component, associated with widespread osteolytic lesions resulting in bone pain, pathologic fractures, hypercalcemia, and normochromic normocytic anemia; spread to extraosseous sites occurs frequently in advanced frequently in advanced disease. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1238 (31st Ed. 2007). He was first diagnosed with multiple myeloma in 2002 and continues to be treated with medication for this condition. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current multiple myeloma is related to service, to include his exposure to benzene and carbon tetrachloride. In support of his appeal, the Veteran submitted an article from the American Cancer Society regarding multiple myeloma, as well as internet articles concerning benzene and carbon tetrachloride. In these articles, the authors suggest a link between chemical exposure and various ailments, to include cancer. The articles presented by the Veteran are of some probative value on the question of causation. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Here, the articles and studies have at least some tendency to show a general association between exposure to certain chemicals and cancer. Pursuant to the May 2011 Board Remand, the Veteran was afforded a VA examination in July 2011. After a review of the claims file and the Veteran's relevant medical history, the VA examiner diagnosed asymptomatic multiple myeloma. As to the etiology of the multiple myeloma, the examiner opined that it is not caused by or a result of an in-service event. The VA examiner reasoned that there is no definitive, unequivocal data to support the finding of multiple myeloma following exposure to benzene or tetrachloride. The examiner also indicated that the cause of multiple myeloma remains unknown. As the rationale for the examiner's opinion rendered the medical question as to etiology unresolved, the AMC obtained an Independent Medical Evaluation (IME). In October 2012, an IME was conducted by a physician, Dr. M., who indicated an extensive review of the Veteran's claims file, including service treatment records, VA treatment records, private treatment records, and medical literature. Dr. M. opined that the Veteran's claimed condition of multiple myeloma was at least as likely as not incurred in or caused by the claimed in-service exposure to benzene or tetrachloride. Dr. M. explained that the Veteran was exposed to chemicals during service and that he was diagnosed with multiple myeloma. The pathogenesis of multiple myeloma is unclear; however, Dr. M. also submitted medical treatise evidence, which indicated that exposure to radiation, benzene, and other organic solvents, herbicides, and insecticides may play a role. Dr. M. further cited the medical treatise article which stated that, with regard to pathogenesis, over 90 percent of monoclonal gammopathy of undetermined significance is associated with cytogenetic changes that are possibly precipitated by infection or immune dysregulation; therefore, Dr. M. concluded that the pathogenesis for the Veteran's multiple myeloma was that it was induced by the exposure to cleaning solvents during service, including benzene and tetrachloride. As such, there are two, conflicting medical opinions of record with respect to the etiology of the Veteran's multiple myeloma. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri at 470. The July 2011 VA examiner indicated that there was no definitive or unequivocal data to support a relationship between benzene and tetrachloride exposure and the development of multiple myeloma, but also admitted that the cause of multiple myeloma was unknown. The examiner did not cite to specific medical literature and did not address the medical treatise evidence submitted by the Veteran. In contrast, the Board finds that Dr. M., who provided an IME and who has reviewed and discussed the Veteran's records in detail, has provided more competent, credible, and probative evidence with regard to the Veteran's current diagnosis and the etiology of that diagnosis. The Board finds that Dr. M.'s opinion is based on an accurate factual background and his findings are well supported by the evidence of record and rationale, including medical treatise. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for multiple myeloma have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Peripheral Neuropathy of the Extremities The Veteran contends that his diagnosed peripheral neuropathy of the bilateral upper and bilateral lower extremity is the direct result of his exposure to chemicals in service or, alternatively, is secondary to multiple myeloma, for which the Board is granting service connection. To prevail on the issue of secondary service causation, the record must show competent evidence of (1) a current disability, (2) a service-connected disability, and (3) a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. After a review of all the evidence, the Board finds that the evidence shows a current disability of peripheral neuropathy of the bilateral upper and bilateral lower extremity. A January 2002 private treatment report indicated a diagnosis, among other conditions, of peripheral neuropathy of both legs and both hands. In a more recent private treatment report from July 2011, the Veteran's treating physician included severe peripheral neuropathy in the History of Present Illness. On the question of current diagnosis, in a July 2011 VA examination, the VA examiner diagnosed the Veteran with polyneuropathy. As adjudicated above, service connection is being established for multiple myeloma. The Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral upper and bilateral lower extremity peripheral neuropathy is proximately due to multiple myeloma. On the question of a relationship of currently diagnosed bilateral upper and bilateral lower extremity peripheral neuropathy to a service-connected disability, the Veteran's private treating physician indicated in a January 2002 report that the multiple myeloma is causing peripheral neuropathy, with weakness in both legs distally, numbness, tingling, and loss of sensation in both hands and both legs. Pursuant to the May 2011 Board Remand, the Veteran underwent a VA examination of the peripheral nerves in July 2011. After a review of the claims file and the Veteran's relevant medical history, the VA examiner diagnosed the Veteran with polyneuropathy. As to the etiology of the condition, the examiner opined that the peripheral neuropathy is not caused by or a result of an in-service event; however, the July 2011 VA examiner explained that the Veteran developed the peripheral neuropathy due to the elevated protein levels from the multiple myeloma, further supporting the Veteran's secondary service connection claims. In October 2012, Dr. M. also provided a medical opinion regarding the etiology of the Veteran's bilateral upper and bilateral lower extremity peripheral neuropathy. After an extensive review of the Veteran's claims file, including service treatment records, VA treatment records, private treatment records, and medical literature, Dr. M. opined that the Veteran's polyneuropathy is at least as likely as not proximately due to or the result of the Veteran's multiple myeloma. Dr. M. based his medical opinion on a January 2009 treatment record from the Veteran's private treating neurologist, Dr. J.K., who indicated that the Veteran's peripheral neuropathy is due to monoclonal gammopathy. All three medical opinions are competent and probative medical evidence because they are factually accurate, as it appears each medical professional had knowledge of the relevant evidence in this case, relied on accurate facts, and gave fully articulated impressions and opinions. There is no other competent medical opinion of record against the claim which directly addresses the etiology of the Veteran's bilateral upper and bilateral lower extremity peripheral neuropathy. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral upper and bilateral lower extremity peripheral neuropathy, as secondary to the service-connected multiple myeloma, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for multiple myeloma is granted. Service connection for peripheral neuropathy of the left upper extremity is granted. Service connection for peripheral neuropathy of the right upper extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. Service connection for peripheral neuropathy of the right lower extremity is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs