Citation Nr: 1801748 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-41 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for non-Hodgkin's lymphoma claimed as due to in-service exposure to herbicide agents. 2. Entitlement to service connection for chronic lymphocytic leukemia claimed as due to in-service exposure to herbicide agents. 3. Entitlement to service connection for pulmonary embolism claimed as secondary to non-Hodgkin's lymphoma. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for left lower extremity neuropathy. 6. Entitlement to service connection for right lower extremity neuropathy. 7. Entitlement to service connection for left upper extremity neuropathy. 8. Entitlement to service connection for right upper extremity neuropathy. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from March 1959 to February 1961 with additional service in the Army Reserves and the Army National Guard. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issues of entitlement to service connection for colon cancer and histoplasmosis have been raised by the record in December 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). VA treatment records were added to record subsequent to the issuance of the October 2015 Statement of the Case (SOC). The Board finds that the additional evidence is duplicative or irrelevant, a remand to the RO for the issuance of an SSOC is not necessary. 38 C.F.R. § 19.37(a) (2017). Moreover, the AOJ will have the opportunity to consider this evidence on remand with respect to the remaining issues. The issues of entitlement to service connection for hypertension and neuropathy of the bilateral upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's exposure to Agent Orange during service has not been demonstrated, as he did not have "service in the Republic of Vietnam," did not serve in the demilitarized zone (DMZ) of Korea during the period from April 1968 to August 1971, was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service. 2. Non-Hodgkin's lymphoma was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 3. Chronic lymphocytic leukemia was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 4. Pulmonary embolism was not shown in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. Non-Hodgkin's lymphoma was not incurred in or aggravated by service and may not be presumed to relate to service. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1131, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. Chronic lymphocytic leukemia was not incurred in or aggravated by service and may not be presumed to relate to service. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1131, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection on a secondary basis for a pulmonary embolism are not satisfied. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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. § 5103(a); 38 C.F.R. § 3.159(b). 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 claims in July 2013. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, and the report of a September 2012 VA examination. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed non-Hodgkin's lymphoma, chronic lymphocytic leukemia, and pulmonary embolism. However, VA need not conduct an examination with respect to these claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, and as will be discussed in detail below, the standards of McLendon are not met in this case as there is no credible lay evidence or competent medical evidence that the Veteran's non-Hodgkin's lymphoma, chronic lymphocytic leukemia, or pulmonary embolism is related to service. Thus remand for a VA examination is not necessary. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain diseases, such as leukemia and malignant tumors, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as leukemia and malignant tumor is through a demonstration of continuity of symptomatology. If a veteran was exposed to an herbicide agent (including Agent Orange) during active service, certain listed diseases, including chronic lymphocytic leukemia and non-Hodgkin's lymphoma, will be presumptively service-connected if the requirements of § 3.307(a)(6) are met and the disease becomes manifest to a compensable degree at any time after service. 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.307(a)(6), presumptive herbicide exposure is generally established by active service in the Republic of Vietnam between January 9, 1962, and May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 at 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis Non-Hodgkin's lymphoma and chronic lymphocytic leukemia The Veteran contends that he has non-Hodgkin's lymphoma and chronic lymphocytic leukemia as a result of in-service exposure to herbicides. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for non-Hodgkin's lymphoma and chronic lymphocytic leukemia as secondary to herbicide exposure is not warranted. In a May 2013 statement, the Veteran stated that while stationed in Korea, he was on assignment in the mountain area near the demilitarized zone (DMZ). However, the Board finds that while the Veteran had active duty service in Korea, he was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during active service to warrant the presumption of service connection. The Veteran's service personnel records do not indicate that the Veteran ever set foot in Vietnam while he was on active duty and the Veteran does not contend that he served in Vietnam. Rather, his service records show that he was stationed in Korea from January 1960 to February 1961. The Board points out that the Department of Defense (DOD) provided to VA an inventory regarding Agent Orange use outside of the Republic of Vietnam. If a veteran had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DOD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iv). While the Veteran's service personnel records demonstrate that the Veteran had service in Korea, his service from January 1960 to February 1961 is outside the specific time period for presumed herbicide exposure near the Korean DMZ. As a result, the Veteran was not presumptively exposed to herbicides during his active service in Korea, and was not actually exposed to herbicides during his service in Korea. To the extent that the Veteran contends that non-Hodgkin's lymphoma and chronic lymphocytic leukemia are related to Agent Orange exposure in service, due to the lack of corroborating evidence in official documents or elsewhere, and inconsistencies shown by the record in the Veteran's report regarding the alleged exposure with official sources, the Board finds that that the Veteran's lay statements are not credible to establish that he was actually exposed to any herbicide agent in service. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Absent either credible evidence of herbicide agent exposure or corroborating evidence of actual exposure to herbicide agents in service, the Board finds that there is no basis for service connection due to herbicide agent exposure on a direct basis. While no presumption of herbicide agent exposure has been satisfied, the claim must be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will also adjudicate the claims on a theory of entitlement to service connection for non-Hodgkin's lymphoma and/or chronic lymphocytic leukemia on a direct basis. Service connection on a direct basis is not warranted as the service treatment records are negative for treatments or complaints of non-Hodgkin's lymphoma and/or chronic lymphocytic leukemia and there is no evidence that the Veteran's non-Hodgkin's lymphoma and/or chronic lymphocytic leukemia is related to his service. Further, there is no competent evidence or opinion otherwise suggesting that there exists a nexus between the Veteran's non-Hodgkin's lymphoma and chronic lymphocytic leukemia and the Veteran's service, and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the diagnosed disabilities of non-Hodgkin's lymphoma and chronic lymphocytic leukemia, does not demonstrate that either non-Hodgkin's lymphoma or chronic lymphocytic leukemia manifested to a compensable degree within one year of separation. Additionally there is no competent evidence that non-Hodgkin's lymphoma and/or chronic lymphocytic leukemia is related to the Veteran's service. The only evidence linking the non-Hodgkin's lymphoma and chronic lymphocytic leukemia to service is the Veteran's own statements. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, which is whether the Veteran has a currently diagnosed the non-Hodgkin's lymphoma and/or chronic lymphocytic leukemia which is related to service, such an opinion falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Veteran's assertions that there is a relationship between his claimed non-Hodgkin's lymphoma and chronic lymphocytic leukemia and his service, to include as secondary to herbicide exposure, are not sufficient in this instance. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that non-Hodgkin's lymphoma and chronic lymphocytic leukemia are not demonstrated until 2003, over 40 years after his discharge from active duty. The Veteran does not contend that non-Hodgkin's lymphoma and chronic lymphocytic leukemia manifested in service or shortly after service. Accordingly, the Board finds that symptoms of non-Hodgkin's lymphoma and chronic lymphocytic leukemia were not chronic in service and continuous after service separation. Additionally, because non-Hodgkin's lymphoma and chronic lymphocytic leukemia did not manifest to a compensable degree in service or within one year of service separation, the Board finds that the presumption of service connection under 38 C.F.R. § 3.303(b) is not warranted. Accordingly, service connection on a presumptive basis may not be granted as the diseases were not shown in service or within one year of discharge therefrom. See 38 C.F.R. §§ 3.307, 3.309. For the reasons discussed above, a preponderance of the evidence is against the claims of service connection for non-Hodgkin's lymphoma and chronic lymphocytic leukemia, to include as due to herbicide agent exposure. Because the preponderance of the evidence is against the Veteran's appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Pulmonary embolism The Veteran claims service connection for pulmonary embolism on a secondary basis. Specifically, the Veteran asserts that his pulmonary embolism is due to his non-Hodgkin's lymphoma. Because the Veteran is not service connected for non-Hodgkin's lymphoma, service connection on a secondary basis is denied. Direct service connection is also denied. The Veteran's service treatment records are devoid of complaints, treatment, or a diagnosis of pulmonary embolism. Medical records show that he initially developed pulmonary embolism in December 2007. In March 2013, private treatment records reveal that the Veteran had acute significant bilateral pulmonary emboli and risk factors were malignancy, decreased activity, and known prior history of pulmonary embolism. Similarly, VA treatment records dated in August 2014 indicated a history of recurrent pulmonary embolism when getting chemotherapy. Thus, as the Veteran has not contended and the medical and lay evidence do not show that the Veteran's pulmonary embolism was incurred in or caused by service; the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim must be denied. ORDER Service connection for non-Hodgkin's lymphoma claimed as due to in-service exposure to herbicide agents is denied. Service connection for chronic lymphocytic leukemia claimed as due to in-service exposure to herbicide agents is denied. Service connection for pulmonary embolism claimed as secondary to non-Hodgkin's lymphoma is denied. REMAND The Veteran is seeking service connection for hypertension and neuropathy of his bilateral upper and lower extremities. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Board finds that, for the reasons set forth below, remand is warranted to obtain a VA examination(s) with a medical nexus opinion. The evidence of record reflects a current diagnosis of hypertension. The Board notes that on entrance examination in March 1959, the Veteran's blood pressure was 170/90, but it was only 140/80 after 2 hours and 45 minutes at rest. The blood pressure reading according to the December 1960 separation examination was 126/80. The Veteran contends that his hypertension continued to be treated after being recorded while in the service. In light of the above, the Board finds that a VA examination is necessary to obtain a medical opinion as to whether the Veteran's hypertension may be related to his military service. The Veteran contends that he incurred neuropathy in both feet and both hands during active service as a result of exposure to cold. Private treatment records reflect diagnoses including neurologic movement disorder and restless leg syndrome. To date, the Veteran has not been scheduled for a VA examination which addresses the contended causal relationship between any current neuropathy in both feet and hands and active service. Given the Veteran's contentions, the Board finds that, on remand, he should be scheduled for VA examination to determine the current nature and etiology of any current neuropathy in both feet and hands. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The AOJ should also attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for neuropathy or residuals of a cold injury and hypertension since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for a VA hypertension examination. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. After reviewing the claims file and examining the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's current hypertension is related to any disease or injury incurred during service or whether it may have manifested to a compensable degree within one year of his separation from service. The examiner is asked to consider the blood pressure readings noted in the March 1959 entrance examination and the December 1960 separation examination. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the lay statements of the Veteran. 3. Schedule the Veteran for a VA examination to determine the current nature and etiology of any neuropathy involving the feet and hands. The entire claims file must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history, if possible, using the appropriate resources within VA to include a cold-injury protocol examination. The examiner is asked to identify all residuals of cold injuries in either foot and/or hand currently experienced by the Veteran, to the extent possible. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorders, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that neuropathy to either foot or hand, if diagnosed, is related to active service or any incident of service, or whether it may have manifested to a compensable degree within one year of his separation from service. The examiner is advised that the Veteran had active service in Korea from January 1960 to February 1961. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the lay statements of the Veteran. 4. Thereafter, the Veteran's claims should be readjudicated. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. An appropriate period of time should be allowed for response. Thereafter, the claims should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs