Citation Nr: 1322031	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  07-28 149	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicides and/or chemicals.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Edwards, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1972 to September 1973.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2011, the Board remanded this claim for additional development.  That development having been completed, the claim is now ready for appellate review.


FINDING OF FACT

The Veteran's non-Hodgkin's lymphoma, to include as due to exposure to herbicides and/or chemicals, is not causally or etiologically due to service.


CONCLUSION OF LAW

Service connection for non-Hodgkin's lymphoma is not established.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012).  Under the VCAA, when VA receives a claim, 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; that VA seeks to provide; and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the regional office.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

The VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2006 that fully addressed the entire notice element.  The letter informed him of what evidence was required to substantiate his claim and of his and the VA's respective duties for obtaining evidence.  In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim.  See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005).  The Veteran received an additional letter in January 2008.  His claim was subsequently adjudicated in an August 2008 Supplemental Statement of the Case (SSOC).

There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content.

To fulfill Dingess requirements, in November 2006, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits.  The regional office successfully completed the notice requirements with respect to the issue on appeal.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

Additionally, VA has a duty to assist the Veteran in claim development.  This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The regional office has obtained service treatment records, private treatment records, and a VA medical opinion pertinent to the issue on appeal.  Virtual VA records have been reviewed.  Therefore, the available medical evidence and records have been obtained in order to make an adequate determination.  Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim.

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty.  Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Entitlement to Service Connection for non-Hodgkin's Lymphoma, to Include as Due to Exposure to Herbicides and/or Chemicals

The Veteran seeks entitlement to service connection for non-Hodgkin's Lymphoma.  He asserts his lymphoma is a result of exposure to herbicides and chemicals during service.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf.  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).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must 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). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  For a 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.  

When the disease entity is established, there is no requirement of evidentiary showing of continuity.  If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a).  Because non-Hodgkin's lymphoma is not specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is not for application in the Veteran's claim of service connection.  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992). 

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116.  Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 

Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service.  

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma.  38 C.F.R. § 3.309(e).  

The Veteran's discharge (DD Form 2214) shows that he did not have any foreign or sea service.  The Veteran asserts he was exposed to Agent Orange or another herbicide and additional chemicals when a container spilled on him at Camp Pickett, around late October 1972.  A review of a Department of Defense (DoD) list of herbicide use and test sites does not reveal any use, testing, or storage of tactical herbicides, such as Agent Orange, at Camp Pickett, Virginia, or Fort Lee, Virginia.  It was noted that the Veteran may have been referring to a drum of herbicide used for small-scale brush or weed clearing activity around the base, but there is no record of such activity with DoD, and therefore, no way to know the chemical content of such non-tactical herbicides.  Id.  Additionally, a response from the United States Armed Services Center for Research of Unit Records (USASCRUR) indicated that DoD suspended the use of Agent Orange in 1971.

The Board finds that service in Vietnam is not shown and there is no record that the Veteran was exposed to Agent Orange during service.  Given the foregoing, and when considered with the other evidence of record, the Board finds that the evidence is insufficient to show duty or visitation in the Republic of Vietnam, and that such service is not shown for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure.  See 38 C.F.R. §§ 3.307, 3.309.  In summary, the Veteran is not shown to have had qualifying service in the Republic of Vietnam, nor is he shown to have been exposed to Agent Orange.  Accordingly, the laws pertaining to Veterans who have been exposed to Agent Orange are not applicable, and service connection may not be granted on this basis.  See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 7-93, 59 Fed. Reg. 4752 (1994).  

However, as noted previously, service connection may also be granted to a Veteran for a disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  The Veteran asserts that he was exposed to embalming chemicals, specifically Hexaphene, while in service and that these chemicals often spilled on him.

The Veteran's service treatment records do not show treatment for, or a diagnosis of, non-Hodgkin's lymphoma.  As for the post-service medical evidence, it consists of private treatment records that indicate that the Veteran was diagnosed with non-Hodgkin's lymphoma in May 2000.

The Veteran's treating physician submitted a statement in March 2010.  The physician opined that the Veteran's exposure to herbicides and/or chemical agents while serving in the military was a possible cause of his medical condition.

A VA medical opinion was obtained in June 2011.  The examiner stated that there was no credible evidence of exposure to Agent Orange in service.  Additionally, the examiner stated that the brief cutaneous exposure described by the Veteran would not be expected to result in an accumulation of dioxin, the toxic agent in Agent Orange.  The examiner also noted the Veteran's assertion that he was exposed to embalming chemicals, specifically Hexaphene.  The examiner stated that a review of the medical literature shows no evidence that formaldehyde exposure increases the incidence of non-Hodgkin's lymphoma.  The examiner opined that at present, there is no evidence that any aspect of the Veteran's military service placed him at an increased risk of non-Hodgkin's lymphoma beyond that of the remainder of the United States population.  Therefore, the examiner opined that it is less likely than not that the Veteran had exposure to Agent Orange during service, that his exposure to Hexaphene service as a proximate cause of his lymphoma, or that any other aspect of his military service was a proximate cause of his non-Hodgkin's lymphoma.

A "Material Safety Data Sheet" on Hexaphene notes that although it is considered a probable human carcinogen, there was no evidence of effects on liver, kidneys, nervous system, or blood in 180 day studies of rats, monkeys, or hamsters.

Based upon the evidence of record, the Board finds that the Veteran's non-Hodgkin's lymphoma did not manifest during active service, and is not shown to have developed as a result of an established event, injury, or disease during active service.  There is no evidence that the Veteran was exposed to Agent Orange.  Although the Veteran may have been exposed to Hexaphene and to small-scale non-tactical herbicides, the evidence does not persuasively show that any non-Hodgkin's lymphoma was incurred during active service or developed as a result of his exposure to herbicides and/or chemicals.  

In making this determination, the Board notes that the Veteran's physician submitted a medical opinion in March 2010 opining that the Veteran's exposure to herbicides and/or chemical agents while serving in the military was a possible cause of his medical condition.  This opinion conflicts with the June 2011 VA opinion.  Where the Board is presented with conflicting medical evidence, it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Court has declined to adopt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor.  See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993).  

Instead, the Court has held that the Board must determine how much weight is to be attached to each medical opinion of record.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases).

The March 2010 private physician's opinion provided no explanation or rationale.  Accordingly, the Board accords the March 2010 private opinion little probative value.  There is no indication that the March 2010 physician reviewed the Veteran's claims folder, to include the reports of chemicals the Veteran asserts he was exposed to, and thus there is no evidence that indicates the physician had knowledge of the specific chemicals the Veteran was exposed to during service.  Moreover, the physician did not provide a rationale for the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  There was no explanation regarding how the chemical exposure during service led to the Veteran's lymphoma.  Hence, this opinion is given limited probative value.

The March 2010 private opinion, without any supporting rationale, knowledge of chemical exposure, or citation to medical studies, is in contrast to the June 2011 VA opinion, which consisted of a complete review of the claims folder and reference to pertinent studies pertaining to the association between Hexaphene exposure and the development of non-Hodgkin's lymphoma.  In formulating the opinion, the VA physician was aware of the Veteran's levels of exposure to Hexaphene during his active service, and an opinion was provided in light of this information.  As detailed, the June 2011 VA opinion refers to multiple medical studies that have not found any link between Hexaphene exposure and non-Hodgkin's lymphoma.  The Board accepts the June 2011 opinion as being the most probative and persuasive medical evidence on the subject, as it contains detailed rationale for the medical conclusions and is based on sound medical principles.  See Boggs v. West, 11 Vet. App. 334 (1998). 

The Board has considered the lay statements of the Veteran.  While the Veteran is competent to provide his observations of what he experienced during and after service and as to some medical matters, the question of a relationship to chemical exposure and his non-Hodgkin's lymphoma in this case are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence).  The Veteran is not competent to provide medical opinions relating an exposure to chemicals to his subsequent development of non-Hodgkin's lymphoma, and thus his lay statements in this regard are accorded no probative value.  Accordingly, the claim fails.

The Board does not dispute that the Veteran was diagnosed with non-Hodgkin's lymphoma.  However, in short, the evidence does not persuasively establish that the Veteran's non-Hodgkin's lymphoma is a result of a disease or injury of active duty service, including any in-service exposure to herbicides and/or chemicals.  For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for non-Hodgkin's lymphoma.  Accordingly, the appeal is denied.


ORDER

Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicides and/or chemicals, is denied.



____________________________________________
JENNIFER HWA
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs