Citation Nr: 1623680 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 13-35 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for abdominal lymphoma with metastasis to the bone marrow (claimed as reticulum cell sarcoma, Non-Hodgkin's lymphoma, and Burkitt's lymphoma) (Non-Hodgkin's Lymphoma), to include as due to exposure to Agent Orange and/or contaminated water at Camp Lejeune. 2. Entitlement to service connection for Non-Hodgkin's Lymphoma, to include as due to exposure to Agent Orange and/or contaminated water at Camp Lejeune. 3. Whether new and material evidence has been submitted in order to reopen a claim for entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected Non-Hodgkin's Lymphoma, 4. Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected Non-Hodgkin's Lymphoma. 5. Entitlement to service connection for a bilateral foot disorder, to include as secondary to service-connected peripheral neuropathy. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Rideout-Davidson, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from October 1961 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2015. A transcript of that hearing has been associated with the claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the Veteran has raised the issue of TDIU at various times during his appeal in statements discussing how his disorders interfere with his employment. He then submitted correspondence regarding his medical leave to VA in September 2011. However, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran's claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy were previously considered and denied by the Board in a December 2005 decision. He did not file a motion to vacate or revise. 2. The evidence received since the final December 2005 Board decision is not cumulative of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy. 3. The Veteran served on active duty at Camp Lejeune in North Carolina in 1963, 1964, 1965, and 1966, where two on-base water supply systems were contaminated. 4. The evidence shows that the Veteran's current Non-Hodgkin's Lymphoma is related to exposure to contaminated water at Camp Lejeune. 5. The Veteran's peripheral neuropathy of the lower extremities and in the right upper extremity was caused by his service-connected Non-Hodgkin's Lymphoma. 6. The Veteran's osteomyelitis of the bilateral feet, to include residuals from surgeries and amputations, was caused by his service-connected peripheral neuropathy. CONCLUSIONS OF LAW 1. The December 2005 Board decision that denied service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy is final. 38 U.S.C.A. §§ 7103, 7104, 7111, 7252, 7266 (West 2014); 38 C.F.R. §§ 20.100, 20.1104 (2015). 2. The evidence received subsequent to the December 2005 Board decision is new and material with regard to the claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy and the claims are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. 3.156 (2015). 3. The Veteran's Non-Hodgkin's Lymphoma was incurred in service. 38 U.S.C.A. §§ 1110, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. Peripheral neuropathy of the lower extremities and right upper extremity is proximately due to or the result of the Veteran's service-connected Non-Hodgkin's Lymphoma. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 5. Osteomyelitis of the bilateral feet, to include residuals from surgeries and related amputations, is proximately due to or the result of the Veteran's service-connected peripheral neuropathy of the lower extremities. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the favorable disposition to reopen the Veteran's claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy and grant the Veteran's claims for Non-Hodgkin's Lymphoma, peripheral neuropathy, and osteomyelitis of the bilateral feet, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. There is no prejudice to the Veteran. Law and Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 116 (Fed. Cir. 2004). 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). I. Claims to Reopen The Board denied the Veteran's claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy in a December 2005 decision. Specifically, the Board found that the evidence of record did not show a relationship between the Veteran's disabilities and his military service. The Board also found no evidence of verified service in Vietnam. The Veteran did not file a motion to vacate or revise the decision. As such, the December 2005 Board decision became final. The Veteran filed an application to reopen his claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy in September 2010 and November 2010, respectively. The RO issued a rating decision in December 2011, which reopened the Veteran's claims, but continued to deny service connection. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Shade, 24 Vet. App. at 118. Of record at the time of the December 2005 decision was the Veteran's service treatment records, post service treatment records, and lay statements. The evidence received since the final December 2005 Board decision includes a private medical opinion statement, which relates the Veteran's Non-Hodgkin's Lymphoma to contaminated water at Camp Lejeune. Additionally, as will be discussed in further detail below, the Board is granting service connection for Non-Hodgkin's Lymphoma. Such evidence was not reviewed or available at the time of the prior Board denial. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran's claims for service connection for Non-Hodgkin's Lymphoma and peripheral neuropathy. The Board notes that review of the Veteran's VBMS file shows that service treatment records and personnel records were noted to have been received by VA in August 2014; after the Board's December 2005 decision. However, review of the prior August 2003 rating decision and the December 2005 Board decision, show that these records, in fact, appear to have been available in December 2005 and were considered in the Board's December 2005 decision. As such, the Board finds that this receipt date is in error and 3.156(c) is not applicable. II. Non-Hodgkin's Lymphoma Review of the claims file reveals that the Veteran served for a period of time at Camp Lejeune in North Carolina. His personnel records indicate that he had service at Camp Lejeune in 1963, 1964, 1965, and 1966. The Board notes that the Director of Compensation and Pension Service issued Training Letter 10-03 in April 2010 in which it was acknowledged that persons residing or working at the U.S. Marine Corps Base at Camp Lejeune from the 1950s to the mid-1980s were potentially exposed to drinking water contaminated with volatile organic compounds. In this regard, in the early 1980s, it was discovered that two on-base water-supply systems at Camp Lejeune were contaminated with the volatile organic compounds (VOCs) trichloroethylene, a metal degreaser, and perchloroethylene, a dry cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. These water systems served housing, administrative, and recreational facilities, as well as the base hospital. In 2008, the Navy sent an informational outreach letter to those individuals who could be identified as having served there between 1957 and 1987. The National Academy of Sciences' National Research Council (NRC) published its Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report included a review of studies addressing exposure to TCE, and Tetrachloroethylene or PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. The NRC analysis found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association, including esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage with exposure during pregnancy, scleroderma, and neurobehavioral effects. The Board notes that while the Training Letter includes a list of diseases determined to be potentially associated with exposure to contaminated drinking water at Camp Lejeune, there are currently no "presumptive" diseases attributed to service at Camp Lejeune. Review of the Veteran's claims file shows that he was not diagnosed with Non-Hodgkin's Lymphoma, or other cancer, while in service. In a June 1973 letter, his private doctor, Dr. W.M., stated that the Veteran was under his care for lymphosarcoma, stage IV, and reticular Burkitt's lymphoma, stage III. The Veteran underwent VA examinations in September 2002 and November 2003 in connection with his claim. At the 2002 examination, he was diagnosed with abdominal lymphoma with metastasis to the bone marrow, which was in remission. The 2003 examiner reported that the Veteran had been diagnosed with lymphosarcoma in 1973 without recent recurrence. Neither examiner offered an opinion as to the etiology of the cancer. The Veteran then underwent a VA examination in November 2011. After an evaluation, the 2011 examiner diagnosed the Veteran with reticulum cell sarcoma, Non-Hodgkin's Lymphoma, and Burkitt's lymphoma, in remission since 1976. The examiner then opined that based on medical literature regarding the potential health exposures and the possible length and type of exposure, that the Veteran's disorders were less likely than not caused by or related to exposure to contaminated water at Camp Lejeune. The Veteran was afforded a VA medical opinion in March 2014. The 2014 VA examiner diagnosed the Veteran with malignancy histiocytic lymphoma (reticulum cell sarcoma, nodular type). She opined that the Veteran had not truly been diagnosed with Burkitt's lymphoma or Non-Hodgkin's Lymphoma. She therefore concluded that the Veteran's cancer was not related to his exposure at Camp Lejeune, as histiocytic sarcoma was an extremely rare disease with no known predisposing environmental or hereditary genetic factors. The Veteran then submitted a private medical opinion from Dr. D.H., dated October 2014. In that statement, Dr. D.H. correctly noted that it had been established that the Veteran had been exposed to contaminated water while at Camp Lejeune. She diagnosed the Veteran with malignant lymphoma, reticulum cell sarcoma, nodular type, which she reported was a form of Non-Hodgkin's Lymphoma. Dr. D.H. opined that the chemicals the Veteran was exposed to at Camp Lejeune were carcinogenic and that since he was exposed to multiple carcinogenic chemicals simultaneously, there was no doubt that such a combination led to the development of Non-Hodgkin's Lymphoma at such an early age. Dr. D.H. then provided a detailed summary of the Veteran's 1972 and 1973 diagnosis as well as a discussion of the pathology and classification of lymphomas. She reported that an issue in the Veteran's case was that the classification for lymphomas had changed multiple times since the Veteran developed and was treated for his lymphoma, however, after a detailed analysis, she determined that the Veteran's cancer was Non-Hodgkin's Lymphoma. She noted that medical literature showed that the early onset date of this cancer was uncommon and exposure to toxic chemicals would increase the risk of developing cancer at a much younger age than expected. Dr. D.H. then summarized the chemicals found in the water at Camp Lejeune and the risks for cancer associated with those chemicals and reiterated her opinion that the Veteran's Non-Hodgkin's Lymphoma was related to his exposure to contaminated water at Camp Lejeune. The Board finds that Dr. D.H.'s medical opinion is the most probative opinion of record in this case. Dr. D.H. provided a detailed analysis of the Veteran's medical history, the pathology and classification of Non-Hodgkin's Lymphoma, the toxic chemicals at issue, and the Veteran's specific presentation in her opinion statement. She also supported her opinions with citations to medical literature. In contrast, the September 2002 and November 2003 VA examiners did not provide an etiology opinion. As such, these examinations are inadequate and of no probative value. The November 2011 examiner cited to medical literature in support of her opinion, but provided minimal rationale and did not discuss the Veteran's case-specific details and presentation. As such, the Board finds that the November 2011 VA examination is also of little probative value. After review of the medical evidence of record and within the context of Dr. D.H.'s detailed analysis, supported by medical literature, the Board finds that the March 2014 VA medical opinion, that the Veteran does not have a diagnosis of Non-Hodgkin's Lymphoma, does not appear to be supported by the record. Further, the analysis provided by Dr. D.H., was a more probative opinion in its use of medical literature, detailed analysis, and discussion of the Veteran's specific presentation. Additionally, to the extent that there is any reasonable doubt, it is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for Non-Hodgkin's Lymphoma is warranted. As the benefit has been granted in full, there is no need to address the alternative theory of entitlement based on herbicide exposure. III. Peripheral Neuropathy Review of the Veteran's service treatment records (STRs) show that he was not treated for or diagnosed with peripheral neuropathy while in service. However, the Veteran has a current diagnosis of peripheral neuropathy, as reflected in nerve studies performed in November 2002. At a VA examination in March 2003, the Veteran was diagnosed with peripheral neuropathy of the feet and to some extent, the hands, which was noted to be related to his prior chemotherapy. In an April 2003 medical record, Dr. J.H. diagnosed the Veteran with sensorimotor polyneuropathy of both feet, and neuropathy of the right ulnar nerve. The Veteran's diagnosis of polyneuropathy of the lower extremities and feet was confirmed in a November 2003 VA examination. The examiner opined that the neuropathy was consistent with a complication of vincristine therapy; noting that the complication was a well-known, established fact. VA examinations performed in December 2003 and November 2011 confirmed these findings; opining that the Veteran's lower extremity neuropathy was due to the treatments he underwent for his cancer. The Veteran's private doctor, Dr. D.H., also opined that his peripheral neuropathy was caused by the treatment he underwent for his Non-Hodgkin's Lymphoma. There is no evidence to the contrary. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board concludes that service connection for peripheral neuropathy of the bilateral lower extremities and the right upper extremity is warranted. IV. Osteomyelitis of the Feet Review of the Veteran's STRs show that he was not treated for or diagnosed with osteomyelitis of the feet while in service. The Veteran underwent a VA examination in connection with his claim in November 2011. At that time, the examiner reported that the Veteran had undergone an amputation of the first and fourth toes on the right foot and the second metatarsal of the left foot. He was then diagnosed with osteomyelitis, bilaterally, status post amputations. The 2011 examiner opined that the osteomyelitis of the feet was due to the Veteran's peripheral neuropathy of the lower extremities. The Board notes that medical records from Baldwin Bone & Joint PC show that the Veteran has had additional treatment, procedures, and amputations as a result of his bilateral foot disorder since the 2011 VA examination. In an October 2014 statement, the Veteran's private doctor, Dr. D.H., opined that the Veteran had developed osteomyelitis as a result of his cancer treatments. There is no evidence to the contrary. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board concludes that service connection for osteomyelitis of the feet, to include residuals from surgeries and related amputations, is warranted. ORDER New and material evidence having been received; the claim of entitlement to service connection for Non-Hodgkin's Lymphoma is reopened. Service connection for Non-Hodgkin's Lymphoma is granted. New and material evidence having been received; the claim of entitlement to service connection for peripheral neuropathy is reopened. Service connection for peripheral neuropathy of the bilateral lower extremities and the right upper extremity is granted. Service connection for osteomyelitis of the bilateral feet, to include residuals from surgeries and related amputations, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs