Citation Nr: 1802555	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  09-42 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for blood cancer, to include follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL), to include as due to exposure to herbicide agents. 


ATTORNEY FOR THE BOARD

T. Joseph, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1963 to July 1965.  The Veteran passed away in December 2011.  The Appellant is the Veteran's surviving spouse.  The Appellant is prosecuting the appeal as a substitute for the Veteran under the provisions of 38 U.S.C. § 5121A (2012).

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied entitlement to service connection for follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL).

The Veteran filed new claims for entitlement to service connection for follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL) in April 2007 and January 2008, respectively.  However, the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, related symptoms, and any other information of record.  Clemons v. Shinseki, 23 Vet. App 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  As such, the issues of entitlement to service connection for follicular non-Hodgkin's lymphoma and entitlement to service connection for composite lymphoblastic lymphoma (CLL) have been recharacterized as service connection for blood cancer, to include follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL), to include as due to exposure to herbicide agents.  The issue on appeal has been recharacterized as set forth above.

This matter was remanded in July 2017 to afford the Appellant a hearing before a Veterans Law Judge (VLJ).  The Appellant was scheduled for a Board hearing on November 3, 2017, but she did not appear.  As the Board has received no request for a postponement or good cause for the Appellant's failure to appear, the hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d).



FINDINGS OF FACT

1.  The preponderance of the evidence is against an etiological relationship between the Veteran's blood cancer and service. 

2.  The Veteran was not exposed to Agent Orange or other herbicide agents in service.

CONCLUSION OF LAW

The criteria for service connection for blood cancer, to include follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL), to include as due to exposure to herbicide agents, have not been met.  38 U.S.C. § 1110, 5103, 5103(A), 5107(2012); 38 C.F.R. § 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran contends that his blood cancer, claimed as follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL), is related to his service and, in particular, to his exposure to herbicide agents while stationed at Fort Carson, Colorado.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially 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).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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 disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The absence of any one element will result in denial of service connection.

Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service.  38 U.S.C. §§ 1112, 1113, 38 C.F.R. §§ 3.307, 3.309.  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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id. 

Continuity of symptomatology is an alternative method of establishing incurrence or aggravation and a nexus to service.  38 C.F.R. § 3.303(b).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases 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. §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).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Appellant asserts that the Veteran is entitled to service connection for blood cancer, to include follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL), to include as due to in-service exposure to herbicides. 

After reviewing the evidence of record, the Board finds that the criteria for establishing service connection for blood cancer have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).

The record reflects that the Veteran had a diagnosis of chronic myelogenous leukemia (CML) during the pendency of the appeal.  Thus, the current-disability criterion for service connection is met.  See Shedden, supra.

Next, the Board must consider whether the Veteran sustained a disease or injury in service.  The Appellant has asserted that the Veteran's condition was due to exposure to toxic herbicide agents in service. 

The Appellant has not alleged and the record does not suggest that the Veteran served in the Republic of Vietnam during the Vietnam Era.  See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  Therefore, exposure to herbicides is not presumed and must be affirmatively established.

In a January 2008 lay statement, the Veteran asserted that he was exposed to herbicide agents while stationed at Fort Carson, Colorado.  The Veteran stated that he was frequently selected to complete daily details, which included handling containers full of Agent Orange.  

The Agency of Original Jurisdiction (AOJ) undertook efforts to determine whether the Veteran was exposed to herbicides as alleged, in accordance with VA procedures, which directs VA to verify potential Agent Orange exposure with the Department of Defense (DoD), via the Compensation and Pension (C&P) Service.  In a September 2009 response, the C&P Service noted that it had reviewed documents provided by DoD regarding herbicide use and testing outside of Vietnam.  The DoD documents did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at Fort Carson, Colorado.  As such, the C&P Service could not provide any evidence to support the Veteran's claim of exposure to herbicide agents at Fort Carson. 

Consideration has been given to the Veteran's contentions that his CML is related to exposure to herbicide agents while in-service.  The Board acknowledges the Veteran's sincere belief as to etiology, however, there is no evidence corroborating his assertion that he was exposed to tactical herbicide agents such as Agent Orange, thereby warranting a presumption of service connection for his CML.  

Notwithstanding the foregoing, the Appellant is not precluded from seeking service connection on a direct theory of entitlement.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

However, the Board finds that there is no competent evidence of record to establish any etiological relationship between the Veteran's active military service and his CML.  In this regard, the evidence does not show any symptomatology related to CML in-service or for many years after service.  In fact, it was not until 2000, approximately 35 years after his discharge from service, that the Veteran was first diagnosed with CML.  The Veteran also did not allege, and the evidence of record does not otherwise indicate, that he incurred his CML in-service or that CML symptoms were continuous after service.  As such, the Board finds that the Veteran's CML was neither manifest during active service nor etiologically related to service.

The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service.  However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise.  See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits"); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).  Unfortunately, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's CML was related to service or any event of service, manifested within one year following separation from service, or was the result of herbicide agent exposure during service.
Accordingly, the Board finds that the preponderance of the evidence weighs against the claim for service connection for CML on a direct basis and the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Entitlement to service connection for blood cancer, to include follicular non-Hodgkin's lymphoma and composite lymphoblastic lymphoma (CLL), to include as due to exposure to herbicide agents, is denied. 



____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs