Citation Nr: 1338029 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-00 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for Non-Hodgkin's lymphoma, to include Mantle Cell and Burkitt lymphoma (cancer). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his wife (TC) ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In August 2009, prior to the expiration of the appeal period, the Veteran provided new and material evidence in the form of a letter from his treating physician on the etiology of his cancer. This evidence is deemed to be filed with the original claim decided in the December 2008 rating decision, and the claim remained pending. See 38 C.F.R. § 3.156(b) (2013). The Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) at the RO in September 2010. In his substantive appeal, the Veteran originally requested a video conference hearing with a Board judge; however, his representative canceled that request in a June 2011 letter. Therefore, no additional hearing is necessary, and the Board has jurisdiction to adjudicate his claim. The issue of total disability based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT The Veteran is currently in remission from cancer, he was exposed to smoke from oil fires and other air pollutants while in service, and his treating physician provided a positive opinion on the causal relationship. CONCLUSION OF LAW The criteria for an award of service connection for Non-Hodgkin's lymphoma have been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran filed a claim for service connection for cancer in June 2008; the RO denied the claim in December 2008 and again in February 2010 after receiving new evidence within the appeal period. As discussed above, the issue remained pending since the filing of the original claim in June 2008. See 38 C.F.R. § 3.156(b). The Veteran appealed and contends that his cancer developed from exposure in service. As the Board's decision herein to grant service connection for cancer is a full grant of the benefits sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. To establish entitlement to service-connection, evidence must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board finds that the evidence proves all the necessary elements, and service connection is merited. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran, his wife, and his friends are competent to report symptoms perceivable by their senses and events experienced during and since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Cancer, however, is a complex disease best understood through the education, experience, and research of a medical professional; lay people are not competent to diagnose cancer or speak to its cause. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board finds the testimony of the Veteran, his wife, and his friends credible as it is consistent with medical and service evidence of record. First, the Veteran has a current cancer disability. He was diagnosed and treated for Non-Hodgkin's lymphoma and is currently in remission. In February 2008, a cancerous mass was discovered and diagnosed as Burkitt lymphoma shortly thereafter. See VA Treatment 2009, University of Nebraska Medical Center (UNMC) Treatment 3/08-7/08. The Veteran received treatment and further testing which revealed mantle cell lymphoma as well. See id. Next, the Veteran was exposed to pollutants during active duty service. The Veteran served in Saudi Arabia from January 1991 to March 1991. See DD Form 215. The Veteran reported being exposed to sand storms and smoke from oil fires while abroad. See VA Examination 1/10, DRO Hearing 9/10. He and his friends from service explained that they camped outside and were exposed to these air pollutants during all periods of the day and at some times the smoke was so thick the air was black. See id; Statement of DEB 9/10; Statement of HS 9/10. Finally, given the benefit of the doubt, the evidence supports that the Veteran's cancer is medically linked to his exposure to pollutants in service. The Veteran's treating physician at the VA provided two statements giving the opinion that he believes the cancer is at least as likely as not related to service. See Letter from Dr. CWS 8/09, Note from Dr. CWS 1/12. The doctor explained that although there is no known cause of the Veteran's forms of cancer, it is known that these cancers use environmentally induced T-cell dependent antigens which lead to mutated genes. See Note from Dr. CWS 1/12. Therefore, he concluded that it is just as likely as not that the Veteran's cancer was caused by his environmental exposure during service. The VA examiner, however, in January 2010, concluded that no one, including Dr. CWS, could speak to the cause of the Veteran's cancer without resorting to speculation, that there was simply not enough known about these forms of cancer. The Board weighs these two credible medical opinions, gives the benefit of the doubt to the Veteran, and finds that the evidence supports a causal relationship between his cancer and service. The Board notes that the Veteran served in the Southwest Asia theatre during the Persian Gulf War. See DD Form 215. The grant of service connection under a direct theory, however, makes application of section 3.317 unnecessary. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. All of the elements needed for service connection have been demonstrated, and service connection for Non-Hodgkin's lymphoma is granted. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The benefit of the doubt has been applied and the Veteran is granted service connection. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for Non-Hodgkin's lymphoma is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs