Citation Nr: 1800983 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-37 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for Hodgkin's lymphoma, to include as due to chemical or environmental hazard exposure. 2. Entitlement to service connection for a blood clot disorder of the left leg, to include as secondary to Hodgkin's lymphoma. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1992 to May 1996. This case comes before the Board of Veterans' Appeals (the Board) from a October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in June 2016. A transcript of the hearing has been associated with the Veteran's claims file. This case was previously before the Board in December 2014. At that time, the Board remanded the claim for additional development. When the claim returned to the Board in March 2016, the Board remanded it to provide the Veteran with a hearing that had been requested after the initial remand. After the hearing was held, the case returned to the Board in September 2017, and was remanded to obtain additional evidence. The case has now returned to the Board. FINDINGS OF FACT 1. The Veteran's Hodgkin's lymphoma was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. 2. The Veteran's blood clot disorder of the left leg was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. CONCLUSION OF LAW 1. The Veteran's Hodgkin's lymphoma was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 2. The Veteran's blood clot disorder of the left leg was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Stegall Considerations The Veteran's claim was remanded in September 2017 to obtain addendum opinions as to the etiology of the Veteran's claimed Hodgkin's lymphoma as due to service in Southwest Asia. In October 2017, the requested opinions were obtained. The opinions were thorough and considered the Veteran's entire claims file. Additionally, they answer the questions presented to the clinician and are supported by sound medical reasoning. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria to Establish Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Direct Service Connection To establish service connection on a direct basis, a Veteran must show: (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary and Aggravated Service Connection In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, a disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b) (2017). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service Connection for Chronic Diseases For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease 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. 38 C.F.R. § 3.303 (b) (2017). This rule does not mean that any manifestation in service will permit service connection. For the 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. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b) (2017). Presumptive Service Connection due to Service in Southwest Asia Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1) (2017). The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1) (2017). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from an undiagnosed illness, to include chronic medically unexplained multi-symptom illnesses that the Secretary determines under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i) (2017). Competence and Credibility The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Of note, the Court of Appeals for Veterans Claims has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis The Veteran has claimed service connection for Hodgkin's lymphoma and a clot disorder of the left leg. The Veteran has specifically alleged that the Hodgkin's lymphoma is due to his service and possible exposure to environmental hazards in Southwest Asia, and that his clotting disorder was secondary to his Hodgkin's lymphoma. Hodgkin's Lymphoma The first element of service connection, a current disability, has been shown by the Veteran's medical records, which indicate that during the pendency of the claim, the Veteran had been diagnosed and treated for Hodgkin's lymphoma. The fact that the condition is now in remission does not impact this analysis. The second element, an in-service event, injury, or illness that may be related to the current disability, has also been established. The Veteran has reported that he served in Southwest Asia and was exposed to environmental hazards. The Veteran's personnel records establish service in Southwest Asia during the Gulf War period. VA's regulations implicitly acknowledge exposure to environmental hazards during this period, however, they are unspecified. Nevertheless, the Board notes that the Veteran has not identified nor does the record indicate any other events, injuries, or illnesses that may be related to the Veteran's Hodgkin's lymphoma. Thus, the second element is established only as to service in Southwest Asia. The final element necessary for service connection is a causal nexus. That is evidence that it is at least as likely as not that the in-service event resulted in the current disability. This element may be established by competent medical evidence or by one of the presumptions of service connection mentioned above. In this case Hodgkin's lymphoma qualifies as a chronic disease under 38 C.F.R. § 3.309 (2017). As such, if it were shown in service or there is a showing of chronicity of symptoms from the time of separation from service, then a causal nexus could be presumed. 38 C.F.R. § 3.303 (2017). Additionally, if the condition were to manifest to a compensable degree within one year of separation of service, a casual nexus could be presumed. 38 C.F.R. § 3.307 (2017). Here, the Veteran was not diagnosed with Hodgkin's lymphoma until 2007. Moreover, the October 2017 examiner reviewed the record to determine when the earliest signs of Hodgkin's lymphoma in the medical records appears and concluded a treatment note in July 2006 was the first indication of the condition. This was nearly a decade after the Veteran separated from active service. Thus, the evidence does not support a presumption of a causal nexus under the chronic disease provisions. Additionally, there exists a presumption of service connection for certain undiagnosed diseases when a Veteran has service in the Southwest Asian theater. However, the Veteran's Hodgkin's lymphoma is not one of those diseases. See 38 C.F.R. § 3.317 (2017). Therefore, in order to establish a causal nexus, there must be competent medical evidence. Here, there is no competent medical evidence that indicates a causal nexus between the Veteran's Hodgkin's lymphoma and his service in Southwest Asia. The Veteran has made statements that he believes there is such a nexus based on his lack of a family history of Hodgkin's lymphoma and certain medical research he has conducted. However, the record does not indicate the Veteran is competent to draw such conclusions. There is no evidence that he has specialized training or experience in the field of medicine. Thus, the Veteran's statements cannot be considered competent medical evidence of a causal nexus. The Veteran also presented an opinion from his oncologist, Dr. G., that addressed the issue of a causal nexus. Dr. G. stated that she could not determine whether the Veteran's lymphoma was due to his service in Southwest Asia. Additionally, VA sought the opinion of a clinician on this issue. Dr. K. concluded there was no way to provide a nexus opinion without resorting to speculation. Dr. K.'s explanation indicated there was a lack of specific facts in this case to allow drawing such a conclusion. She stated that the Veteran's statements about what he was exposed to were unclear and nonspecific. The records did not indicate what environmental hazards the Veteran was exposed to. Without such evidence a conclusion could not be reached. Further, Dr. K. noted that medical studies have found no correlation from general service in Southwest Asia and the incurrence of Hodgkin's lymphoma. Dr. K.'s explanation is thorough, and provides a clear indication of why a conclusion cannot be drawn. Further, the explanation is sufficient to determine that the inability to draw a conclusion is not due to a lack of expertise, research, or review of the record. The Board also notes that the evidence Dr. K. has specified is necessary to draw a conclusion, the specific environmental hazards the Veteran was exposed to, cannot reasonably be obtained. The Veteran's complete personnel records and service treatment records have been obtained and do not identify the environmental hazards. The Veteran has also been unable to provide any additional information as to the specific environmental hazards. Thus the Board has no reasonable basis to conclude that further remand would result in obtaining the evidence necessary for a clinician to draw a conclusion as to whether there is a causal nexus between the Veteran's service in Southwest Asia and his Hodgkin's lymphoma. Therefore, the Board accepts the opinion as adequate. See Jones v. Shinseki, 23 Vet. App. 382, 391. The Board concludes there is no competent medical evidence of a causal nexus between the Veteran's Hodgkin's lymphoma and service in Southwest Asia. Therefore, service connection on a direct basis is not warranted. Blood Clot Disorder of the Left Leg The first element of service connection, a current disability, is established by the Veteran's medical records, which indicate a blood clot disorder in the left leg during the pendency of the claim, diagnosed as deep venous thrombosis. However, there is no indication of an in-service event, injury, or illness related to the Veteran's condition. The Veteran's service treatment records do not indicate any diagnosis or symptoms of a blood clot disorder. Further, the Veteran does not allege such. Instead, the Veteran has alleged the condition is secondary to his Hodgkin's lymphoma. The October 2017 VA examiner came to the same conclusion, stating there was an absence of any other clear cause, and that it was at least as likely as not a result of the Veteran's Hodgkin's lymphoma. Thus a preponderance of the evidence is against granting service connection on a direct basis. The Board has also considered whether service connection is warranted on a secondary basis. As noted above, the Veteran's Hodgkin's lymphoma has not been granted service connection. Thus, service connection for a blood clot disorder of the left leg cannot be established on a secondary basis. Finally, the Board has considered whether the condition could be granted presumptive service connection based either on the chronic diseases provisions or service in Southwest Asia. The Veteran's blood clot disorder, identified by the October 2017 examiner as deep venous thrombosis, is not considered a chronic disease. See 38 C.F.R. § 3.309 (2017). Further, the condition is not one that is afforded a presumption under the Southwest Asia provisions. See 38 C.F.R. § 3.317 (2017). Thus, service connection is not warranted on a presumptive basis. ORDER Entitlement to service connection for Hodgkin's lymphoma is denied. Entitlement to service connection for a blood clot disorder of the left leg is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs