Citation Nr: 1311037 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 05-11 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to March 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO) which denied service connection for non-Hodgkin's lymphoma, claimed as due to exposure to herbicides. The Veteran testified at a June 2006 Board hearing; the hearing transcript has been associated with the claims file. The Board remanded the case to the RO for further development in September 2008. In October 2010, the Board denied the Veteran's non-Hodgkin's lymphoma claim. The Veteran subsequently appealed the October 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board's October 2010 decision and remanded the matter to the Board for further development consistent with the Joint Motion. The Board once again remanded the case to the RO for further development in December 2011 pursuant to the Joint Motion. Development has been completed and the case is once again before the Board for review. FINDING OF FACT There is competent and credible medical evidence of record that establishes that the Veteran has non-Hodgkin's lymphoma that is proximately due to a service-connected disability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for secondary service connection for non-Hodgkin's lymphoma are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2007 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As the Board's decision herein to grant service connection for non-Hodgkin's lymphoma, is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2011). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Prior to February 24, 2011, VA did not have any statutory or regulatory criteria governing herbicide exposure for Korean veterans. However, VA had received from the Department of Defense (DoD) a listing of locations outside of Vietnam where tactical herbicides were used or tested over a number of years. In this regard, the DoD confirmed that tactical herbicides were used along the demilitarized zone (DMZ) in Korea from April 1968 to July 1969. When it was determined that a Veteran who served in Korea from April 1968 to July 1969 belonged to one of the units identified by DoD, then it could be presumed that he or she was exposed to herbicides containing herbicides, and the presumptions outlined in 38 C.F.R. § 3.309(e) were applied. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, subpt ii, ch. 2, sec. C.10 (in effect prior to September 15, 2011). Additionally, when a veteran alleged service along the DMZ between April 1968 and July 1969, but his unit is not one listed as presumptively exposed, VA was to submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the location of the veteran's unit. Id. Effective February 24, 2011, VA amended its regulations to create a presumption of herbicide exposure for specified Korean veterans as follows: A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv) (in effect since February 14, 2011). In the final rule for 38 C.F.R. § 3.307(a)(6)(iv), VA explained that "April 1, 1968" was the "earliest date of potential exposure indicated by DoD." 76 Fed. Reg. 4245, 4246 (Jan. 25, 2011). In September 2011, VA revised its M21-1 MR provisions to reflect the amended 38 C.F.R. § 3.307(a)(6)(iv). In so doing, VA kept the list of units or other military entities that DoD identified as operating in or near the Korean DMZ during the qualifying time period. M21-1 MR, Part IV, subpt ii, ch. 2, sec. C.10 (change in effect since September 15, 2011). VA intended to continue the JSRRC verification process for alleged service along the DMZ between April 1968 and July 1969, but erred in its wording as follows: Important: Send a request to the JSRRC for verification of exposure to herbicides when a Veteran claims exposure in Korea, and his/her service was not between April 1, 1968, and August 31, 1971, and in a unit or entity listed in the table above. It is clear to the Board that VA intended this note to read as follows: Important: Send a request to the JSRRC for verification of exposure to herbicides when a Veteran claims exposure in Korea, and his/her service was between April 1, 1968, and August 31, 1971, and not in a unit or entity listed in the table above. In this respect, as reflected in the final rule, April 1, 1968 is the "earliest date" of potential exposure along the DMZ. It would be futile to attempt to verify any herbicide exposure prior to that date. VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2011). The list of diseases for which a presumption of service incurrence exists following inservice herbicide exposure was modified by a recent regulatory change, effective August 31, 2010, removing chronic lymphocytic leukemia and replacing it with all chronic B-cell leukemia, and also adding ischemic heart disease (excluding hypertension), as well as Parkinson's disease. See 75 Fed. Reg. 53202 (2010). Service treatment records do not reflect any complaints, diagnoses, or treatment that a medical professional has related to the Veteran's non-Hodgkin's lymphoma. Private medical records show that the Veteran has been diagnosed with non-Hodgkin's lymphoma. See Private Treatment Records, to include records from Virginia Oncology Associates; Virginia Commonwealth University Medical College of Virginia Hospitals; Chippenham Medical Center; Glenside Medical Associates; HealthSouth Family Practice; and Virginia Physicians, Inc. The earliest medical evidence of record indicating a diagnosis of non-Hodgkin's lymphoma was in 1999. The Veteran contends that he developed non-Hodgkin's lymphoma based on exposure to an herbicide agent. The Veteran, in this case, has stated that he was exposed to Agent Orange or other defoliants while he was stationed at the ASCOM (Army Support Command Korea) Depot in South Korea. The Veteran's Form DD 214 shows that the Veteran served as a payroll distribution specialist with 21st Finance Section. Personnel records submitted by the Veteran show that he was stationed at ASCOM. The Veteran was not stationed along the DMZ in Korea, nor was he assigned to a unit in the affected area at the time Agent Orange was being used. The Board finds that the Veteran was not stationed with units that were in the area of exposure during the period of herbicide use; therefore, the Veteran is not presumed to have been exposed to an herbicide agent in service. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration Fact Sheet, distributed in September 2003. Thus, the Board finds that presumptive service connection is not warranted for non-Hodgkin's lymphoma based on exposure to herbicides used in Korea. See 38 U.S.C.A. § 1116(f) (West 2009); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.309(e) (2011). The Veteran, however, is not precluded from establishing service connection by evidence of direct or secondary causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With regard to direct service connection, while the Board notes that the Veteran contends that he was primarily exposed to Agent Orange at ASCOM Depot because ASCOM was responsible for incoming supplies and the dispersal of supplies received, and that the sole purpose of ASCOM was to receive and deliver supplies to include herbicides and a host of other chemicals to all base camps, the Board finds that any further discussion of the Veteran's contentions with regard to direct service connection are unnecessary because the Board herein intends to grant the Veteran's claim on a secondary basis. With regard to secondary service connection, the Veteran contends that his non-Hodgkin's lymphoma is secondarily related to his service-connected tuberculosis. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that while this appeal was pending, VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection, effective October 10, 2006. The intent of the amendment is to conform to the regulation in Allen v. Brown, 7 Vet. App. 439 (1995), the Court decision that clarified the circumstances under which a Veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. See 71 Fed. Reg. 52,744 (September 7, 2006). In this regard, 38 C.F.R. § 3.310 was changed to note that aggravation will not be conceded unless the baseline level of severity, of the nonservice-connected disability, is established by medical evidence. The level of aggravation will be determined by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Prior to this amendment, as noted above, secondary service connection was warranted for a disability when the evidence demonstrates that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The amendments to this section are not liberalizing. Therefore, because the Veteran's original claim of entitlement to service connection for non-Hodgkin's lymphoma was received prior to October 10, 2006, the Board will apply the former version of the regulation. With regard to secondary service connection the Board notes that the service treatment records indicated that the Veteran had a positive tuberculin skin test in February 1969 while he was still stationed in Korea. The Veteran had a negative chest x-ray at the time. Following service in October 1970, the Veteran presented with a severe cough which included coughing up blood. The chest x-ray taken at that time showed a cavitary infiltrate in the right upper lobe of the lung, coupled with a positive tuberculin skin test as well as positive sputum smears. The Veteran was diagnosed with moderately advanced, pulmonary tuberculosis. He was hospitalized for 2 months. Subsequently in 1999, the Veteran was hospitalized for a detected mass in the left side of his neck that was diagnosed as lymphadenopathy. A biopsy further led to the diagnosis of non-Hodgkin's lymphoma, a malignancy. The Veteran contends that his service-connected tuberculosis led to his non-Hodgkin's lymphoma and that it is therefore secondarily related. In September 2012, the Veteran provided an opinion from a private doctor who stated that the Veteran's tuberculosis probably led to his non-Hodgkin's lymphoma, despite the length of time between the occurrence of the tuberculosis and the initial diagnosis of the non-Hodgkin's lymphoma. The examiner noted that it was well known that people with altered immune function are known to be at higher risk for later developing certain types of non-Hodgkin's lymphoma. He further noted however that is was less well known, but nevertheless true, that a number of studies have found an increased risk of non-Hodgkin's lymphoma in people who have had chronic infections like tuberculosis. The examiner cited a Swedish study which found that individuals with severe disease, evidenced in part by positive sputum cultures, like those of the Veteran, had an even higher risk for non-Hodgkin's lymphoma 40+ years after diagnosis than they did during the first 39 years after initial diagnosis of tuberculosis. The examiner noted another study addressing the association between tuberculosis and non-Hodgkin's lymphoma which found that the "median time between the initial appearance of tuberculosis infection and the metachronous detection of malignancy was greater than 20 years. The examiner determined the Veteran's development of non-Hodgkin's lymphoma 29-30 years following his bout with severe tuberculosis fell right in line with that pattern. As such, the examiner opined that it was as likely as not that the Veteran's development of non-Hodgkin's lymphoma was directly related to his contraction of severe tuberculosis while serving in the military. The Board notes that "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). The Board must assess the credibility and weight of all the 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. In this instance, the Board finds that the September 2012 private opinion was both competent and credible. The examiner was a medical doctor who reviewed the Veteran's medical history as well as medical research associated with the American Cancer Society. The examiner accurately noted incidents during the Veteran's active duty service as well as post-service treatment and provided medical research that was then applied specifically to the Veteran's situation in support of the positive nexus opinion. As such the Board finds the private examiner's opinion to be both competent and credible. In this regard, the Board finds that the opinion of the September 2012 private examiner is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Additionally, the Board notes lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this regard, the Board notes that the Veteran is not competent to determine that a disorder is etiologically caused by another disorder. The possibility of a causal relationship between one disability and another requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder as related to another disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether he suffers from non-Hodgkin's lymphoma that is related to his service-connected disability of tuberculosis. But, as noted above, the September 2012 private examiner opined that the Veteran's non-Hodgkin's lymphoma is indeed related to his service-connected tuberculosis. In consideration of all of the above, the Board finds that service connection for non-Hodgkin's lymphoma secondary to service-connected tuberculosis may be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Lewinski, 1 Vet. App. 49 (1990). ORDER Service connection for non-Hodgkin's lymphoma secondary to service-connected tuberculosis is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs