Citation Nr: 1310975 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 04-42 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1980 to August 1980, from March 1985 to June 1987, and from January 1991 to May 1991. The appellant also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2006, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This case was previously before the Board and remanded in September 2006, April 2009, July 2010, and July 2012. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has non-Hodgkin's lymphoma that is related to service. CONCLUSION OF LAW Non-Hodgkin's lymphoma was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a notice letter was issued in October 2000. A letter addressing the assignment of a disability rating and/or effective date, in the event of award of the benefit sought was issued in December 2006. The claim has since been readjudicated, most recently in a February 2013 supplemental statement of the case. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. As requested in the Board remands, the AMC contacted the appropriate service department offices and all appropriate National Guard repositories to obtain documentation of the dates of the appellant's service, including all periods of ACDUTRA and INACDUTRA. The appellant's leave and earning statements from 1991 through 1995 were obtained and associated with the claims file. The records indicate the appellant's dates of National Guard service. Thus, the Board finds there has been substantial compliance with the Board's remand order. See Stegall, 11 Vet. App. at 268. Private medical records identified by the appellant have been obtained, to the extent possible. Some of the appellant's Social Security Administration records have been associated with the file. The records indicate the appellant was granted service connection in 1996. In a request for reconsideration the appellant indicated that he got fatigued easily and felt depressed. Thus, the additional Social Security Administration records would not be relevant to the appellant's claim for service connection for non-Hodgkin's lymphoma. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. In a July 2012 letter, VA asked the appellant to complete a form requesting military record and to clarify the chemicals to which he is claiming exposure while serving on active duty from February 1991 to April 1991, as requested in the Board's remand order. However, the appellant did not respond . The Board notes that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a VA examination in February 2002 and VA opinions in May 2012 and January 2013. The opinions were rendered by medical professionals. The examiner obtained an accurate history and the claims file was reviewed. The examiners laid factual foundations for the conclusions that were reached. Therefore, the Board finds that the examination and opinions are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, such as Hodgkin's disease, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. III. Analysis The appellant asserts that he is entitled to service connection for non-Hodgkin's lymphoma. For the reasons that follow, the Board finds that service connection is not warranted. The appellant had active service from June 1980 to August 1980, from March 1985 to June 1987, and from January 1991 to May 1991. He also had periods of ACDUTRA from 1991 to 1995. The appellant served in the Gulf War. He was diagnosed with non-Hodgkin's lymphoma in September 1995. As the appellant has residuals from non-Hodgkin's lymphoma, he has a current disability for VA purposes. Thus, the next question is whether there is a nexus between the non-Hodgkin's lymphoma and service. The appellant's service treatment records do not reflect any treatment for non-Hodgkin's lymphoma. The appellant's service treatment records reflect that he was treated for sore throats, colds and bronchitis throughout his periods of service. A July 1985 service treatment record reflects that the appellant had bronchitis. A May 1987 service treatment record also indicates the appellant had bronchitis. A January 1986 service treatment record notes that the appellant complained of fatigue. A June 1990 annual periodic examination report noted the appellant's tonsils were enucleated. No lung conditions were noted. In a June 1990 report of medical history, the appellant indicated he was in good-excellent health and did not take any medications. No current conditions were noted. A May 1992 annual physical examination report reflects that the appellant's lungs were normal. In a May 1992 report of medical history, the appellant indicated he was in good health. He did not note having had any conditions other than pre-service injuries and a history of conjunctival irritation of the right eye from December 1990 to June 1991. In an August 1992 report of medical history the appellant indicated his present health was good and he did not take medications. No conditions were noted. In a September 1994 report of medical history, the appellant also indicated he was in good health and taking no medications. He did not note any current medical conditions. A May 1995 Little Rock Air Force Base, Flight Surgeon's Office record noted that the appellant had complained of a fever, sore throat, congestion, headache and fatigue for 1 day. The impression was an upper respiratory infection. Another May 1995 Little Rock Air Force Base record reflects that the appellant's symptoms had resolved. Another May 1995 service treatment record indicated that the appellant was medically cleared for flying following an illness or injury. An August 1994 VA treatment record reflects that the appellant reported having chronic fatigue. An August 1994 letter from a VA physician reflects that an examination indicated that the appellant had chronic fatigue and frequent colds. An August 1995 New York Hospital CT report found that the appellant had large well-circumscribed predominantly right sided anterior mediastinal mass. The clinical history noted the appellant had shortness of breath while renovating an old house. A September 1995 New York Hospital Emergency Room record notes that the appellant complained of face, neck and head swelling with chest pain and shortness of breath. A CT scan from August 1995 revealed a large mediastinal mass. The record noted the appellant had a four week history of increasing upper body plethora and swelling with chest "pressure" and persistent and worsening dysaphea. The indication was lymphoma. The record noted that the appellant had no fevers- either infectious or B type symptoms and apparently fast growing. Another September 1995 New York Hospital record also noted that the appellant was in his usual state of health until 3 to 4 weeks ago when he began noting swelling of the face and neck which he attributed to dust exposure. 2 to 3 weeks ago, he began to have chest pain and head pressure with mild exertion. A September 1995 private treatment record reflects that the appellant had reported 10 days ago after 3 to 4 weeks of upper body swelling. He also had chest pain. An August 1995 CT scan revealed a large mediastinal mass. The record noted that the appellant used tobacco socially. A September 1995 private cytologic interpretation report reflects the appellant had malignant lymphoma, large-cell type, anterior mediastinum. The diagnosis was confirmed by a directed needle biopsy of the lung. A September 1995 letter from M.C., M.D., reflects that the appellant had been under his care since September 5, 1995, for large cell lymphoma producing severe superior vena caval obstruction. He was on intensive combination chemotherapy. A November 1995 private treatment record reflects that the appellant had been diagnosed with non-Hodgkin's lymphoma originally involving the right lung. An October 1995 VA treatment record reflects that the appellant his symptoms since his return from the Gulf included chronic fatigue, feeling ill all the time, gastrointestinal problems and persistent headaches. The appellant felt that the chronic fatigue he experienced after returning from the Gulf was indicative of an immune system failure responsible for the cancer. A July 1996 Medical Evaluation Board examination report reflects that the appellant was medically disqualified for FC II duties and qualified for continued ANG service with waiver for nonHodgkin's lymphoma. The Medical Board report found nonHodgkin's lymphoma was not incurred while he was entitled to basic pay, did not exist prior to service, and was not permanently aggravated by service. The Board recommended continued military service. A July 1996 report of medical history indicates the appellant was treated for lymphoma cancer of the chest, non-Hodgkin's from August 1995 to June 1996 with chemo and radiation therapy. It was in remission. The appellant submitted several statements from friends, family and coworkers indicating that he reported feeling fatigued following his return from the Persian Gulf. A September 1996 buddy statement from J.H. reflects that he had known the appellant since 1988 and could recall him complaining about chronic fatigue after returning from Desert Storm. In a September 1996 statement, M.R. stated that he recalled the appellant complaining of chronic fatigue the year following his service in the Persian Gulf. He stated that the appellant showed him pictures of the environment in the Persian Gulf where he did his duty which included heavy burn off from oil fires (thick, black smoke) in which he was exposed. An October 1996 buddy statement from M.D. reflects that the appellant complained of feeling extremely tired on many occasions over the past several years. He also complained of body aches, excessive illness, and gastrointestinal problems, following his duty in the Persian Gulf. M.D. stated that the appellant's tumor was large and according to his doctor, took a long period of time to develop. In an October 1996 statement, the appellant's brother stated that the appellant was not feeling well after his tour of the Persian Gulf. He stated that he recalled the appellant complaining about chronic fatigue as well as other ailments. The brother stated that the appellant was seen by an Air Force doctor for breathing difficulties in May 1995. In an October 1996 statement, L.W. stated that he had flown with the appellant on many occasions with the Air National Guard. He could verify that the appellant had commented/complained of a chronic fatigue problem ever since he returned from the Persian Gulf. The appellant's wife reported in an October 1996 statement that as early as a few months from his return from Desert Storm ,the appellant experienced extreme fatigue which made his job as a pilot very difficult. He was constantly getting ill. She stated that they felt his immune system was affected. His wife stated that the appellant's last visit to a hospital prior to being diagnosed with cancer was at Little Rock Air Force Base where he was told he had bronchitis, but did not have an X-ray. She stated that the symptoms continued and two months later he was diagnosed with lymphoma. In an October 1996 statement M.S.B., M.D., stated that he was the appellant's brother-in-law. He stated that he had not examined or treated the appellant as a patient, but could verify his complaints of fatigue and malaise. He stated that the appellant had been complaining of chronic fatigue, headaches and gastrointestinal problems since returning from the Gulf. A November 1997 VA Persian Gulf examination report reflects that the appellant reported having some exposure to oil fumes and smoke which was not prolonged. He gave a history of feeling tired for years. He reported a history of diarrhea and stomach ache for 3 days, not recurrent. He reported having shortness of breath and on work up was found to have non-Hodgkin's lymphoma "which could explain most of his symptoms." A November 1997 VA mental examination report indicates the appellant's non-Hodgkin's lymphoma was in remission. A December 1997 VA examination report reflects that a review of the appellant's records showed that he had recurrent upper respiratory infections and sore throat prior to his Persian Gulf service. Lymphadenopathy became evidence only in August of 1995. The appellant's family, friends and coworkers are competent to report symptoms capable of lay observation, such as observing the appellant experiencing fatigue or telling them that he was tired. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the statements to be credible. However, the appellant's family, friend and coworkers are not competent to report that he had symptoms since active service, including fatigue, that were caused by the non-Hodgkin's lymphoma. Thus, the statements have limited probative value. An October 2000 letter from M.C., M.D. reflects that the appellant had been his patient since August 1995. Dr. M.C. stated that the appellant was treated with intensive chemotherapy and radiation for large cell lymphoma. He stated that carcinogens, such as Agent Orange, have been implicated in producing lymphoma. Dr. M.C. stated that there is good reason therefore to believe his exposure to toxins and/or chemicals in the Gulf War could have caused his lymphoma. As Dr. M.C.'s statements is equivocal, the Board finds that it has limited probative value. A February 2002 VA examination report reflects that the appellant stated that he had been experiencing neck swelling, chest pain, and frequent episodes of dizziness and presyncopal attacks prior to the diagnosis of large-cell lymphoma in August 1995. The VA examiner stated that certain carcinogens, such as Agent Orange, have been linked to lymphoma. She stated that however, she could not determine if these carcinogens were present or not in the Gulf War. The Board finds the February 2002 VA examination report is not probative, as the VA examiner did not provide an opinion as to whether the appellant's non-Hodgkin's lymphoma was related to service. A September 2008 VA treatment record reflects that the appellant's non-Hodgkin's lymphoma was cured. The appellant reported that he was cutting back on cigarettes to half a pack per day. A March 2010 VA examination report reflects that the appellant's non-Hodgkin's lymphoma was in remission. The VA examiner stated that the appellant's onset of non-Hodgkin's lymphoma was 1995. The examiner opined that it is unlikely that any symptoms documented in the appellant's active duty service or training are manifestations of the appellant's non-Hodgkin's lymphoma. The appellant had various nonspecific symptoms that were due to conditions documented in the service treatment records, such as respiratory infections, etc. These were not due to non-Hodgkin's lymphoma. The VA examiner stated that there was a large gap of approximately 4 years between ending active duty service and a diagnosis of lymphoma. The VA examiner opined that it is unlikely that any symptoms that he experienced in service are related to the lymphoma. As the VA examiner provided a rationale for the opinion, the Board finds it to be probative. A January 2013 VA opinion notes that information in the service treatment records shows that the appellant was evaluated for numerous upper respiratory infections which were treated symptomatically and which resolved quickly. The VA examiner stated that it is true that certain viruses and bacteria appear to increase the risk of non-Hodgkin's lymphoma, but in this case, there was no supportive serology done during acute infections. In addition, the examiner noted that the appellant's last deployment to the Persian Gulf ended in May 1991 and the diagnosis of non-Hodgkin's lymphoma was confirmed in September 1995, a good four years after May 1991. The VA examiner also noted that as a pilot, the appellant's occupational exposure to noxious chemicals and fumes would likely have been minimal. The VA examiner stated that there appeared to be an increased risk in persons exposed to certain pathogens. This is not the case with exposure to oil fire smoke or any other hazardous chemicals. In addition, there are several studies which looked at the relationship between smokers (of which this veteran is one) and the development of non-Hodgkin's lymphoma. In fact, it has been reported by Mallick that overall, smokers tend to have a 40% risk of developing non-Hodgkin lymphoma. The VA examiner noted that there was nothing in the literature to support the exposure to fumes from burn pits is related to the development of non-Hodgkin's lymphoma. Thus, the examiner opined that because of the length of time between exposure in the Persian Gulf and the appearance of non-Hodgkin's lymphoma, that there was no serology done during the acute cold symptoms while he was in service, that he is a smoker and that as a pilot, he would not have been extensively/directly exposed to burning pits, it is less likely than not that the appellant's diagnosis of non-Hodgkin's lymphoma is etiologically related to the appellant's active service, including to exposure to chemicals contained in the oil fire smoke in the Persian Gulf or any other hazardous chemicals verified by official sources. As the January 2013 VA examiner provided a thorough rationale for the opinion, the Board finds it to be probative. The appellant has contended that his non-Hodgkin's lymphoma disability is related to service. Although a lay person may be competent to report the etiology of a disability, non-Hodgkin's lymphoma is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is confirmed by biopsy, the Board finds that the probative value of any such opinion is outweighed by that of the VA examiners who have education, training and experience in evaluating the etiology of non-Hodgkin's lymphoma. Based on the above evidence, the Board finds that a preponderance of the evidence is against a finding that the appellant's non-Hodgkin's lymphoma is related to service. The appellant contended that his non-Hodgkin's lymphoma was caused by exposure to fumes in service. He has also asserted that he has had symptoms of fatigue since service. The appellant's service treatment records do not reflect treatment for non-Hodgkin's lymphoma. The Board notes that the appellant's service treatment records indicate treatment for colds, bronchitis and upper respiratory infections, including records from the 1980s, prior to his service in the Gulf War. The appellant's reports of medical history from 1992 and 1994 indicate that he reported that he was in good health. He did not note any conditions. The appellant's non-Hodgkin's lymphoma was found in August 1995 and diagnosed in September 1995. In September 1995, the appellant reported having had symptoms of upper body plethora, chest pressure and persistent and worsening dysaphea for 4 weeks. Although the appellant and the statements from his friends and family reflect he had symptoms of fatigue since service, there is no evidence that these symptoms are related to the non-Hodgkin's lymphoma. Significantly, the contemporaneous medical evidence from 1994 and 1995 reflects that the appellant did not report any problems until August 1995. The September 1995 New York Hospital record specifically noted that the appellant was in his usual state of health until "3 to 4 weeks ago." There is no medical evidence indicating that the appellant's symptoms of fatigue were related to his non-Hodgkin's lymphoma or evidence that the appellant had the condition since his service in 1991. As lay witnesses, the appellant and his friends and family are not competent to report that the appellant had non-Hodgkin's lymphoma since service. Although the Board finds their statements to be generally credible, and thus, probative, the Board finds the contemporaneous evidence of record and medical opinions of record to be more probative. The contemporaneous evidence indicates the appellant did not report having symptoms until 3 to 4 weeks before the non-Hodgkin's lymphoma was found. The September 1995 private treatment record also appears to indicate that the tumor was "apparently fast growing." Several medical opinions were obtained in regard to the appellant's claim. As noted above, in the October 2000 letter, Dr. M.C. opined that there was good reason to believe that the appellant's exposure to toxins and/or chemicals in the Gulf War "could have caused his lymphoma." As Dr. M.C.'s statement indicated the chemicals "could" have caused lymphoma, the statement is equivocal and lacks probative value. Additionally, Dr. M.C. noted that carcinogens such as Agent Orange had been implicated in producing lymphoma, but did not specify what toxins or chemicals the appellant was exposed to in the Gulf War. Therefore, the Board finds the opinion has limited probative value. The February 2002 VA examination report also has limited probative value as the VA examiner did not provide a nexus opinion, instead stating that she could not determine if these carcinogens were present or not in the Gulf War. The March 2010 VA examiner opined that it was unlikely that any symptoms the appellant experienced in service were related to the lymphoma. The January 2013 VA examiner found that it was less likely than not that the appellant's diagnosis of non-Hodgkin's lymphoma is etiologically related to his active service, including to exposure to chemicals continued in the oil fire smoke in the Persian Gulf or any other hazardous chemicals verified by official sources. As the March 2010 and January 2013 VA examiners provided rationales for their opinions, the Board finds the opinions to be probative. As discussed above, although the appellant has asserted that his non-Hodgkin's lymphoma is related to service, he is not competent to provide an opinion as to the etiology of non-Hodgkin's lymphoma, as it is a disorder verified by biopsy and other medical tests. Consequently, the Board finds the evidence is against a finding that the appellant's non-Hodgkin's lymphoma is related to service. Hodgkin's disease is a chronic disorder for which service connection may be granted on a presumptive basis if the disease becomes manifest within one year following discharge. 38 C.F.R. § 3.309(a). However, the appellant has been diagnosed with non-Hodgkin's lymphoma which is not subject to presumptive service connection. Consequently, service connection is not warranted on that basis. Non-Hodgkin's lymphoma is a disease associated with exposure to certain herbicide agents, but there is no record of the appellant having been exposed to herbicide agents. Thus, service connection is not warranted on that basis. 38 C.F.R. § 3.309(e). The Board also notes that the appellant had periods of ACDUTRA in 1994. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2012). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. Basically, this refers to the two weeks of annual training that each National Guardsman must perform each year or in some cases, an initial period of training. ACDUTRA includes full-time duty with the National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c) (2012). INACDUTRA includes service with the National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(23)(C); 38 C.F.R. § 3.6(d) (2012). Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not appropriate. Leave and earning statements from 1991 to 1995 have been associated with the claims file. The records reflect that the appellant was had drills and active duty in the National Guard until May 1995. No service is noted from June 1995 through December 1995. As the appellant was diagnosed with non-Hodgkin's lymphoma in August and September 1995, he was not diagnosed during a period of ACDUTRA. Although service connection may be granted for disability resulting from disease incurred or aggravated while performing ACDUTRA, the evidence does not support a finding that he was diagnosed with non-Hodgkin's lymphoma during any period of ACDUTRA. 38 U.S.C.A. § 101(24), 106. The Board notes that the appellant was seen in May 1995 for complaints of a fever, sore throat, congestion, headache and fatigue while the appellant was on active duty in the National Guard. However, the evidence does not reflect he was on ACDUTRA at that time. Additionally, the appellant reported having had the symptoms for only one day. The impression was upper respiratory infection and another May 1995 record indicated the symptoms had resolved. As noted above, when the appellant was diagnosed in September 1995, he reported that he was in his usual state of health until 3 to 4 weeks ago. The September 1995 private treatment record also appears to indicate that the tumor was "apparently fast growing." Thus, the evidence does not demonstrate that the appellant had non-Hodgkin's lymphoma that was incurred or diagnosed during a period of ACDUTRA. In sum, the Board finds that service connection is not warranted for non-Hodgkin's lymphoma. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for non-Hodgkin's lymphoma is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs