Citation Nr: 1633579 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 13-20 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for lymphoma, to include as due to herbicide exposure. 2. Entitlement to service connection for a nerve condition, to include as secondary to lumbar spine condition. 3. Entitlement to a compensable rating for left cervical lymph gland disability. 4. Entitlement to a rating higher than 10 percent for removal of cyst from right axilla with resultant sensory loss. 5. Entitlement to service connection for a lumbar spine condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to May 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2016. Shortly after that hearing, the Veteran submitted additional evidence with a waiver of RO consideration. The issues of increased ratings for left cervical lymph gland disability and removal of cyst from right axilla with resultant sensory loss and service connection for a lumbar spine condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The record shows neither a current diagnosis of lymphoma nor exposure to herbicides in service. 2. The Veteran's nerve condition is not attributable to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for lymphoma have not been met. 38 U.S.C.A. §1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for service connection for a nerve condition have not been met. 38 U.S.C.A. §1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in a letters sent to the Veteran in December 2009 and April 2010. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159. 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). Service, VA, and private treatment records are associated with the claims file. No medical nexus opinion was provided for the Veteran's lymphoma or nerve condition claims. In determining whether the duty to assist requires that a VA medical opinion obtained with respect to a veteran's claim for benefits, the Board considers four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record does not contain a diagnosis of lymphoma. Additionally, the record does not show an in-service occurrence or injury related to either condition. Moreover, the post-service evidence does not indicate any complaints or treatment referable to a nerve condition until several years following separation. Furthermore, the record contains no competent evidence suggesting a causal relationship between his current nerve condition and active service. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require a medical nexus opinion. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Service Connection - Lymphoma The Veteran is seeking service connection for lymphoma, to include as due to herbicide exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. §3.303(a). "To establish a right to compensation for a present disability, a Veteran 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as non-Hodgkin's lymphoma, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §1116(a); 38 C.F.R. § 3.309(e). The term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). The Veteran has not alleged and the record does not suggest that he served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Therefore, exposure to herbicides is not presumed and must be affirmatively established. The Veteran has alleged exposure to herbicides due to his service at Fort Gordon. In support of his claim of herbicide exposure, the Veteran has submitted a printout of a VA Office of Public Health and Environmental Hazards list of herbicide testing and storage in the United States. This shows that Agents Orange and Blue were stored at Fort Gordon for two days in July 1967. The Veteran did not enter service until June 1976; nine years after the Agents Orange and Blue are noted to have left Fort Gordon. As the Veteran was not present at Fort Gordon at the same time as the herbicides, this evidence does not establish his exposure to either compound. The Veteran has argued that he was exposed to Agent Orange and other defoliants that lay dormant in the layers of soil at Fort Gordon for decades due to filing sandbags and digging trenches and foxholes during training. He has not submitted any corroborating evidence to suggest that herbicide agents remain in layers of soil for that extended of a period generally or that he was exposed to herbicides in that manner. Moreover, the record does not establish a diagnosis of non-Hodgkin's or any type of lymphoma. His service treatment records include a May 1976 biopsy report that specifically found no lymphoma. Indeed, the Veteran testified that he had never been diagnosed with this condition. Likewise, the December 2009 VA examiner did not find evidence of lymphoma, noting that the Veteran's reported history did not include any diagnosis of or treatment for this condition. In summary, the Board concludes that there is no competent evidence that the Veteran currently suffers from lymphoma. In the absence of proof of present disability, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, the record does not establish exposure to herbicides during the Veteran's service. Thus, there is no doubt to be resolved, the preponderance of the evidence is against the Veteran's claim, and service connection for lymphoma is not warranted. III. Service Connection - Nerve Condition The Veteran is also seeking service connection for a nerve condition. Specifically, he has reported a nerve condition in his bilateral lower extremities that he attributes to his lumbar spine condition. See December 2009 statement. During the pendency of this appeal, the Veteran has been diagnosed with lumbar radiculitis. See September 2009 private treatment record. The Veteran's service treatment records are silent with regard to any complaints of nerve problems in the bilateral lower extremities. The Veteran testified that his nerve condition began at the same time as his lumbar spine condition. See April 2016 hearing. Taking that in the light most favorable to the Veteran, the Board has considered whether the evidence suggests nerve complaints at the time of the Veteran's in-service complaints of low back pain. No radiating pain or sensory impairments were noted at the time of his in-service low back complaints noted above. Indeed, even at the time of the Veteran's post-service treatment for low back strain in May 1985, his treating physician specifically noted "no radiation." Thus, the record shows that the Veteran did not report any complaints attributable to a nerve condition during service to include while seeking treatment for his complaints of low back pain. Likewise, these records do not indicate trauma to the spine to which the Veteran's subsequent nerve complaints can be related. As such, no in-service incurrence or aggravation of a disease or injury has been shown upon which direct service connection can be based. Alternately, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. The Veteran has attributed his nerve condition to his low back condition. See e.g., April 2016 hearing. Likewise, the medical evidence associates this condition with the Veteran's current lumbar spine condition. See e.g., September 2009 private treatment record. Unfortunately, for the reasons detailed above, the Veteran is not entitled to service connection for a lumbar spine condition. Therefore, service connection is not warranted for a nerve condition secondary his lumbar spine condition For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a nerve condition and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. ORDER Service connection for lymphoma is denied. Service connection for nerve condition is denied. REMAND At his April 2016 hearing, the Veteran testified that he did not feel the March 2013 VA examination adequately addressed his residuals of removal of cyst from right axilla. Specifically, he cited resultant sensory loss and adhesion of the scar. Thus, a new examination is necessary to consider all of the Veteran's reported symptoms. Additionally, the Veteran reported bilateral rotator cuff tears resulting from his attempts to compensate for the pain. The examiner is asked to clarify whether the Veteran's right rotator cuff tear is a symptom of this disability or secondary to this disability. If not, to the extent possible, the examiner must distinguish the symptoms associated with the Veteran's service connected removal of cyst from right axilla from those symptoms associated with non-service connected conditions. The Veteran's testimony on this issue overlapped his testimony regarding the issue of an increased rating for left cervical lymph gland disability. At one point when asked about his right axilla symptoms, the Veteran reported "a constant nagging on this ear," which may be more appropriately attributed to the left cervical lymph gland disability. Thus, both issues are remanded for a new VA examination. The Veteran testified that he retired due to severe pain. Thus, these examinations should also address the impact these service connected disabilities have had on his ability to work. Finally, with regard to his lumbar spine condition claim, the Board finds the rationale provided by the June 2010 VA spine examiner impermissibly relies in part on a finding that if the Veteran's May 1977 report of a several year long history of intermittent low back pain was correct, than this condition would have preexisted service. As the May 1976 entrance examination specifically found that the Veteran's spine was normal, the Veteran was presumed sound with regard to any spinal conditions at the time he entered military service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination or examinations to determine the current severity of his removal of cyst from right axilla. The entire claim file should be reviewed by the examiner. (a) All signs and symptoms of the service-connected right axilla disability should be reported in detail in a manner that is responsive to the rating criteria. The examiner is asked to specifically consider the Veteran's contentions regarding sensory loss, possible adhesion of the scar, and rotator cuff tears. (b) The examiner must describe the impact of the Veteran's right axilla disability on his occupational functioning. A complete rationale should be provided for any opinion offered. 2. Schedule the Veteran for an appropriate VA examination or examinations to determine the current severity of his left cervical lymph gland disability. The entire claim file, to include electronic files, should be reviewed by the examiner. (a) All signs and symptoms of the service-connected left cervical lymph gland disability should be reported in detail in a manner that is responsive to the rating criteria. The examiner is asked to specifically consider the Veteran's contentions regarding possible adhesion of the scar. (b) The examiner must describe the impact of the Veteran's left cervical lymph gland disability on his occupational functioning. A complete rationale should be provided for any opinion offered. 3. Arrange for a medical opinion on the etiology of the Veteran's lumbar spine (preferably by an examiner who has not previously rendered an opinion in the matter). The entire claim file must be reviewed by the examiner. The examiner is not required to personally examine the Veteran unless it is deemed medically necessary. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current degenerative disc disease and/or facet arthrosis with spinal stenosis began in service or is otherwise related his service. In doing so, the examiner should address the Veteran's in-service complaints of low back pain in August 1976, May 1977, and May 1979, and his reported rigorous training in service, including digging foxholes and trenches, building sandbags, road marches, and obstacle courses. Please note that for purposes of this opinion, the examiner must ignore any evidence that the Veteran's reported a history of back pain prior to military service. This is because no back disability was clinically noted upon the Veteran's entry into military service. Therefore, under VA law, he was considered sound with respect to his back upon entry into military service. The examiner should provide reasons for any opinion given. The reasons for the opinion should include consideration of the Veteran's reports of symptoms. The medical reasons for accepting or rejecting the Veteran's statements regarding symptoms should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion. 4. Then, readjudicate the claims, to include consideration of extraschedular ratings. If any action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs