Citation Nr: 1333529 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-04 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma, to include as secondary to pesticide exposure. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1956 to May 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the record. Subsequent to the August 2013 hearing, additional evidence was received without a waiver of initial RO consideration. A governing regulation provides that when pertinent evidence is submitted by an appellant without a waiver of RO consideration it must be referred to the RO for review and preparation of a supplemental statement of the case (SSOC). 38 C.F.R. § 20.1304. However, the Board finds that referral of this submission for initial RO consideration is not necessary because it does not address the dispositive question in this case (i.e., it does not include any information that tends to show the Veteran was exposed to pesticides in service). Without credible evidence of exposure to pesticides during service, even unequivocal evidence of a nexus between exposure to pesticides (and their alleged toxic components) and the development of non-Hodgkin's lymphoma is secondary is immaterial. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran had any significant exposure to pesticides (to include the chemical components lindane, malanthion, diazion, heparin, benzene, and warfarin) in service. 2. Non-Hodgkin's lymphoma was not manifested in service, or within the first year following the Veteran's discharge from active duty, and is not otherwise shown to be related to his service. CONCLUSION OF LAW Service connection for non-Hodgkin's lymphoma is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, a March 2012 letter provided certain essential notice prior to the readjudication of his claim. See Mayfield, 444 F.3d at 1328. The March 2012 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. A November 2012 supplemental statement of the case (SSOC) readjudicated the matter after the appellant responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). As is noted above a videoconference hearing was held before the undersigned in August 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2013 hearing, the Veterans Law Judge specifically discussed the evidence that was lacking to substantiate the claim. Specific suggestions were made to the Veteran of means to corroborate that his duties in service exposed him to pesticides (and their toxic components). The Board finds that there has been compliance with 38 C.F.R.§ 3.103(c)(2), in accordance with Bryant. It is not alleged that notice has been less than adequate. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment records (STRs) have been determined to be unavailable, as it was determined the Veteran's STRs were destroyed by the 1973 fire at the National Personnel Records Center. When service records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. Here, the claims file includes a February 8, 2011 memorandum outlining the steps VA has taken to attempt to secure his STRs. The Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in [otherwise] developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). However, no presumption, in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. at 217-18. The Veteran's pertinent postservice treatment records have been secured. The RO arranged for a VA examination in January 2013. Thereafter additional medical evidence (an August 2013 letter from the Veteran's private physician) was received. However, another examination is not necessary, as it is exposure to pesticides not the matter of a nexus between any such exposure and the development of non-Hodgkins lymphoma that remains unsubstantiated. Legal Criteria, Factual Background and Analysis At the outset, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Service connection may be granted for disability resulting from an injury sustained or a disease contracted while on active duty in the military. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disease, including malignant tumors, may be service connected on a presumptive basis if manifested in a specified period of time postservice (one year for malignant tumors). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran asserts that while on active duty in La Rochelle, France he was exposed to pesticides, including the chemical components lindane, malanthion, diazion, heparin, benzene, and warfarin. He states that his duties in service included the preparation and dispersion of the pesticides, and that his non-Hodgkin's Lymphoma developed as a result of such exposure. As is noted above, the Veteran's STRs are unavailable. Notably, he has acknowledged that he did not seek treatment for lymphoma on active duty (and thus the STRs would not likely have included any pertinent information). February 1995 private treatment records show that the Veteran was treated for mild thrombocytopenia. It was noted that he was asymptomatic, but had had a relatively stable mild thrombocytopenia over fourteen months. Additionally, it was noted that his thrombocytopenia was unlikely to be attributable to any recent toxic exposure. A bone marrow biopsy was scheduled. In May 1995, after a repeat bone marrow biopsy, it was determined the Veteran clearly had a lymph proliferative disorder. No therapeutic interventions were prescribed, however, his condition was monitored monthly. No etiology was discussed. A June 1995 consult and opinion report confirms the diagnosis of low grade clonal B cell lymph proliferative disease. The etiology was not identified. The Veteran continued to be monitored. In July 2000 he expressed concerns to his physician regarding the correlation between lymphoma and meat consumption. His physician explained that although there was a possible correlation, it was not evidence of causation. In January 2001, the Veteran expressed anxiety that his former workplace was contaminated with PCBs, and that he was attempting to track excessive cancer cases to that building. While his physician noted that the Veteran asked his opinion about the relation between PCBs and cancer, the physician's opinion was not noted in the treatment records. In October 2005, treatment records note the Veteran and his physician discussed the lack of direct clarity in terms of cause and effect of potential exposures as related to his current illness. During a September 2007 annual follow-up examination it was noted that the Veteran's low-grade lymphoma was of an unknown etiology. A June 2010 letter from the Veteran's physician confirmed the diagnosis of low-grade B-cell lymph proliferative disorder, and noted that the disease was indolent in nature, he remained stable, and required no treatment. Annual monitoring was scheduled. In April 2011, an inquiry to the Defense Personnel Records Information Retrieval System confirmed that U.S. Army historical records do not document the spraying, testing, transporting, storage, or usage of Agent Orange at La Rochelle, France during the period between October and December 1957. Additionally, a review of Department of Defense records did not list La Rochelle, France as a listed location for herbicide spray areas or testing sites. A June 2011 letter from the Director of the Army Institute of Public Health, Entomological Science Program at the Aberdeen Proving Ground confirmed that lindane and warfarin were available for military use. However, no records could be found concerning specific dates, locations or pesticide products that may have been used by or near the La Rochelle Army installation during 1957. Further inquiry to the Armed Forces Pest Management Board (AFPMB) revealed that the AFPMB did not possess any information regarding the military's handling or use of pesticides, including lindane and warfarin, near or adjacent to the La Rochelle U.S. Army installation from October 1957 to December 1957. In November 2012, the Veteran submitted a copy of his certificate of training from the Army which shows he completed the Basic Army Administration Course, MOS 710.00. He indicated that this military occupational specialty (MOS) was clerk typist, but that when he was notified that he was eligible for promotion, he was informed there were no vacancies in his MOS, so therefore he applied for a promotion as a Heating and Ventilation Specialist, but never performed the duties of that MOS. He alleges that instead he served as a clerk typist before being assigned to the company engineers, where he was assigned various duties (including determining the BTU requirements for the entire base, the preparation of pesticides to eliminate insects and rodents, and investigation of officers for various derelictions of duty). A copy of a January 1958 special orders extract shows the Veteran's primary MOS listed as 521.10 (listed on his DD 214) and his secondary MOS as 710.00. On January 2013 VA examination, non-Hodgkin's lymphoma was diagnosed. The Veteran reported that he served in France and mixed and sprayed lindane for insects, mixed warfarin for rats, and sprayed malanthion for insects. He reported having non-Hodgkin's lymphoma diagnosed in 1989 and receiving treatment to the present. On examination, the disease was described as indolent and in remission. A June 2010 letter from the university's human resource office confirms the Veteran retired in December 2000 because of non-Hodgkin's lymphoma. Following examination, the examiner opined that the Veteran's non-Hodgkin's lymphoma was at least as likely as not caused by or a result of pesticide exposure in the military. The examiner cited top medical studies (an article cited in the examination report is associated with the record) which support that non-Hodgkin's lymphoma has been associated with exposure to certain pesticides. Noting that the Veteran's STRs were destroyed, VA attempted to secure additional military personnel records; however, in March 2013 it was again confirmed that there were no alternate records (i.e., morning reports) on file that would show that the Veteran's duties included dispensing pesticides. During the August 2013 hearing, the Veteran testified that while overseas in France, he was told to mix pesticides, including lindane and benzene, and spray around the kitchen equipment and mess halls. He identified four bases where he sprayed monthly. He testified that he did not wear any protection while mixing or spraying the pesticides. When asked if he could provide any evidence of his duties, and his alleged exposure, he stated that he had provided all the evidence that he could. He indicated that he had attempted to locate persons who served with him, but was unsuccessful. He explained that he was assigned the duties related to pesticides because there was a reduction in force and had a college degree; he did not receive any specific training for the handling of pesticides, but was given a manual to read and assigned duties. [He also testified that his duties on base included interviewing officers on base, including the commanding officer, who were accused of engaging in unnatural sexual acts.] In August 2013, a private physician opined that it was possible that the Veteran's non-Hodgkin's lymphoma was due to exposure to benzene and lindane during military service. The Veteran had reported substantial exposure to toxic chemicals in the course of his duties in service. During the course of the appeal the Veteran also submitted internet literature detailing that chemicals used for defoliation and pest control have been linked to lymphoma and are a significant risk factor for such disease. Initially the Board notes that it is neither shown nor alleged that the Veteran's non-Hodgkin's lymphoma manifested in service or within the first postservice year. It was diagnosed in 1995, many years following his separation from active duty. Consequently, service connection for non-Hodgkin's lymphoma on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. §§ 1112, 1137), is not warranted. The Veteran's theory of entitlement to the benefit sought is that his non-Hodgkin's lymphoma resulted from exposure to pesticides (to include the chemical components lindane, malanthion, diazion, heparin, benzene, and warfarin) in service. To substantiate this theory of entitlement, the Veteran must, in addition to showing he has non-Hodgkin's lymphoma (it is not in dispute that he has such disease, in remission), show that he was indeed exposed to the pesticides as alleged, and that there is a nexus between exposure to the pesticides and non-Hodgkin's lymphoma. The Veteran has submitted internet articles supporting his contention that there is a nexus between the pesticides and chemicals in question and non-Hodgkin's lymphoma. In addition, he submitted a statement from a private physician that states that it was possible that the Veteran's alleged exposure to benzene and lindane during military service caused non-Hodgkin's lymphoma. A VA provider has also indicated, with supporting medical literature, that exposure to the pesticides and/or chemical components alleged is a known etiological factor for non-Hodgkin's lymphoma. Hence, there is more than ample evidence to establish a nexus between exposure to the pesticides in question and non-Hodgkin's lymphoma. Therefore, the critical question that remains is whether the Veteran was indeed exposed to pesticides (to include the chemical components lindane, malanthion, diazion, heparin, benzene, and warfarin) as he has alleged. At the outset, the Board notes and finds significant, that the Veteran's initial mention of exposure to pesticides was made with the filing of this claim in June 2010 (fifty-two years following separation from service and fifteen years following the diagnosis of his lymphoma). As noted above, the Veteran's complete service records are unavailable. However, the records that are available (including his DD Form-214) show that his initial MOS was that of clerk and then it was heating and ventilation specialist. There is nothing in the record to suggest that these occupational specialties include duties requiring handling or spraying of pesticides. Notably, he has not alleged that his MOS's involved such duties. He claims he was assigned the duties (and others not pertinent herein) outside of his MOS (and without training), because of his advanced education. Notably, the record does show that he received 8 weeks of training for his MOS. Acknowledging that prior to service the Veteran received a more advanced education than the average soldier (a college degree in psychology), the Board nonetheless finds his allegations of being assigned duties and responsibility for the unsupervised preparation and spraying of pesticides (as well as other duties investigating officers on base including the base commander for misconduct) to not be credible. First of all, such allegations first appeared with his claim for compensation, and are obviously compensation-driven and self-serving. See Pond v. West, 12 Vet. App. 341 (1991) (interest may affect the credibility of testimony). Further, the allegations, as the Veteran acknowledged at the hearing before the undersigned, are incapable of corroboration. While this does not render them not credible, what does is that they require a stretch of the imagination that the Board simply is not prepared to make. The Veteran's highest rank in service (as noted on his separation document) was SP-3. It is not plausible that a soldier of such rank would have been assigned unsupervised duties and responsibilities of such significance, i.e., bearing on the health and well-being of military personnel on various military installations (nor is it plausible that a person of such rank would have been assigned such duties as investigating officers at his base, including the base commander, which is irrelevant to the issue at hand, but bears on the Veteran's credibility). As outlined above VA has made exhaustive efforts to corroborate the Veteran's allegations that his duties involved the handling and spraying of pesticides. These proved unsuccessful. At the hearing before the undersigned, the Veteran was advised that because official records were unavailable, he could corroborate his account by providing lay statements from supervisors or fellow servicemen who would have been familiar with his duties in service. He indicated he was unable to locate (and could not identify) anyone who could corroborate his allegations. Inasmuch as the bare, unsupported accounts of exposure to pesticides and their chemical components, that could have caused non-Hodgkin's lymphoma have been found not credible, the Board finds the preponderance of the evidence is against the Veteran's claim. A critical element of a successful claim for service connection -credible evidence of a disease or injury in service (via exposure to pesticides)- is not met. Accordingly, the appeal in this matter must be denied. ORDER The appeal seeking service connection for non-Hodgkin's lymphoma is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs