Citation Nr: 1319544 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-35 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for mantle cell non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant, Wife ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from September 1972 to June 1976 and from December 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that the RO construed a May 2008 statement from the appellant as a claim to reopen the service connection claim. In the statement, the appellant stated that he requested reconsideration of the rating decision dated October 2007. In a September 2008 rating decision, the RO confirmed the denial of the service connection claim. The appellant filed a notice of disagreement in September 2008. However, as the May 2008 statement was received within one year of the October 2007 rating decision, the Board construes the statement as a notice of disagreement with the October 2007 rating decision. Thus, the issue before the Board is characterized as noted above. In February 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In February 2013, the Board received a new private treatment record and statement from the appellant. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2012). In a written statement dated in February 2013, the appellant waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant's mantle cell non-Hodgkin's lymphoma that is related to service. CONCLUSION OF LAW Mantle cell 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 duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's service connection claim. Appropriate notice was provided in a June 2007 letter. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible, including the requests requested by the appellant. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. 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 an August 2012 medical examination to obtain an opinion as to whether the appellant's non-Hodgkin's lymphoma was the result of service. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is 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 Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 claims that he is entitled to service connection for mantle cell non-Hodgkin's lymphoma due to exposure to environmental hazards during service in the Gulf War. For the reasons that follow, the Board finds that service connection is not warranted. Private treatment records reflect that the appellant was diagnosed with mantle cell non-Hodgkin's lymphoma in 2006. The August 2012 VA examination report reflects that the cancer came back in December 2009 and was in remission at the time of the VA examination. A February 2013 private treatment record reflects that the appellant had mantle cell lymphoma with ongoing cytotoxic therapy. As the appellant has a diagnosis of mantle cell non-Hodgkin's lymphoma, he has a current disability, satisfying the first element of a service connection claim. The appellant has not asserted that he had symptoms of non-Hodgkin's lymphoma in service. (See February 2013 Board Hearing Transcript at p. 6-7) The appellant stated that he served in Desert Storm for 8 months as a transportation driver. He stated that he was exposed to oil fires, burn pits and garbage pits. He stated that he drove a truck every day and they constantly kicked up dust. (Tr. at p. 3-4) He also reported that he wore a flea repellant collar. (Tr. at p.4) The appellant's DD Form 214 reflects that he had active service in Southwest Asia from December 1990 to August 1991. His service personnel records reflect that he participated in the Southwest Asian Cease-Fire Campaign: Defense of Saudi Arabia Liberation and Defense of Kuwait. A December 2000 letter from the Office of the Secretary of Defense indicates that the appellant's unit was near Khamisiyah from March 10 to 13, 1991. The models predicted that if the appellant was with his unit at the time of the demolition of a chemical agent munitions at Khamisiyah, Iraq, in March 1991, he may have been exposed to very low levels of chemical agent for a brief period of time after the demolition. The letter stated that there was no indication that any long-term health effects would be expected from a brief, low-level exposure to chemical agents that may have occurred near Khamisiyah. The appellant is competent to report symptoms capable of lay observation such as being exposed to oil fires, burn pits and garage pits. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that his statements are supported by the evidence of record. His DD Form 214 reflects that he was a senior vehicle driver and served in South West Asia from December 1990 to August 1991. The December 2000 letter also reflects that the appellant may have been exposed to very low levels of a chemical agent. Thus, the Board finds the appellant's statements referring to his exposure to environmental toxins in service to be credible. The appellant's service treatment records do not reflect that he had any symptoms relating to non-Hodgkin's lymphoma, which is consistent with the appellant's testimony that he was not diagnosed with the disability until 2006. An April 1991 service examination report did not note any conditions other than scars. A July 1994 National Guard service examination report indicates the appellant had a normal physical examination other than decreased hearing, scars, and his weight. In a July 1994 report of medical history he did not note any symptoms relating to non-Hodgkin's lymphoma. A June 2006 private treatment record reflects that the physician discussed the appellant's occupational exposures with the appellant. The report noted that the appellant was exposed to nerve agents as well as multiple solvents at work while in Desert Storm. As noted above, the appellant's private treatment records reflect that he was treated for mantle cell-non Hodgkin's lymphoma which was diagnosed in 2006. The private treatment records do not address whether there is a nexus between the appellant's service and non-Hodgkin's cell lymphoma. The appellant was afforded a VA examination in August 2012. The VA examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the VA examiner noted that the appellant had been diagnosed with mantle cell non-Hodgkin's lymphoma stage IV. He had received multiple treatments with chemotherapy and currently did not have active cancer in the body. The VA examiner stated that although there is currently no definitive cause of non-Hodgkin's lymphoma, medical evidence has shown an association with the development of lymphoma and a family history of lymphoma, exposure to pesticides as in Agent Orange and immunocompromised as in HIV infections. Current medical literature does not show a connection of having exposure to toxins or Kuwait oil fires and the development of non-Hodgkin's lymphoma. The VA examiner stated that it is therefore not likely the appellant's non-Hodgkin's lymphoma incurred in or was caused by exposure to burning oil fires that occurred while service in Kuwait. As the VA examiner provided a rationale for the opinion and based the opinion on the evidence of record the Board finds the opinion to be probative. The appellant has asserted that his mantle cell non-Hodgkin's lymphoma 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 typically confirmed by blood tests and specialists, the Board finds that the probative value of any such opinion is outweighed by that of the August 2012 VA examiner, who has education, training and experience in evaluating the etiology of non-Hodgkin's lymphoma. The VA examiner reviewed the appellant's claims folder and opined that it was not likely that the appellant's non-Hodgkin's lymphoma was related to service. The appellant is also not entitled to service connection on a presumptive basis. Non-Hodgkin's lymphoma is disease associated with exposure to certain herbicides used in Vietnam. See 38 C.F.R. §§ 3.307(a), 3.309(e). However, the appellant has not asserted that he was exposed to herbicides. The appellant served in the Navy from September 1972 to June 1976 and in his claim indicated that he had not served in Vietnam. The appellant also did not have symptoms of non-Hodgkin's lymphoma within one year of service. Additionally, as the appellant was diagnosed with a specific disease, non-Hodgkin's lymphoma, compensation is not warranted due to an undiagnosed illness. 38 U.S.C.A. § 1117(a)(2) ; 38 C.F.R. § 3.317(a)(2). Based on the above, the Board finds that a preponderance of the evidence is against the appellant's claim for service connection for mantle cell non-Hodgkin's lymphoma. The appellant has a diagnosis of mantle cell non-Hodgkin's lymphoma. The Board finds that the appellant's competent and credible statements and his service personnel records demonstrate that he was exposed to environmental hazards in service including oil fires and possible chemical agents. The August 2012 VA examiner found that it was less likely than not that the non-Hodgkin's lymphoma was related to service, including exposure to toxins and burning oil fires. As the VA examiner provided a rationale for the opinion, the Board finds the opinion to be probative. As discussed above, the Board finds the August 2012 VA opinion to be more probative than the appellant's assertion that the non-Hodgkin's lymphoma is related to service. In the absence of any other evidence of record linking the appellant's non-Hodgkin's lymphoma to service, the Board finds that a preponderance of the evidence is against the appellant's service connection claim. The appellant has not asserted that he has had symptoms of non-Hodgkin's lymphoma since service or within one year of service. The appellant was first diagnosed with non-Hodgkin's lymphoma in 2006, 15 years after his discharge from service. As discussed above, the Board also finds that service connection is not warranted on a presumptive basis. 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 mantle cell non-Hodgkin's lymphoma is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs