Citation Nr: 1803717 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 17-65 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for left hip lymphoma, to include as secondary to lung cancer, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Navy from October 1959 to March 1963 and from November 1963 to December 1965. The record currently contains conflicting information regarding whether the Veteran has additional service dates, which will be addressed in the REMAND section. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The June 2017 rating decision denied entitlement to service connection for left hip lymphoma and lung cancer. The Veteran filed a timely notice of disagreement for both claims. In September 2017, the RO granted the Veteran's claim for service connection for lung cancer. His lung cancer has been, at least partially, attributed to exposure to asbestos in service. The Veteran then additionally argued that his left hip lymphoma may be secondary to his lung cancer. His initial claim for both cancers alleged that they were a result of exposure to herbicides/Agent Orange. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Dates of Service The claims file contains DD 214s for the Veteran's periods of service from October 1959 to March 1963 and from November 1963 to December 1965. Additionally, service treatment records and service personnel records from these two periods of service are contained in the claims file. However, PIES requests for information related to the Veteran's service included their finding that he had honorable service from October 1959 to March 1963 and from December 1965 to November 1968. The information on the PIES requests appears to be the correct Veteran. These PIES requests were made to determine whether the Veteran had exposure to asbestos in service and to determine if he had any service in Vietnam, or otherwise may have had contact with herbicides/Agent Orange. A review of his service personnel and treatment records reveals that the Veteran was discharged in December 1965 due to "unsuitability" from a diagnosis of "emotionally unstable personality." As such, it appears that the PIES responses are incorrect in the dates of service they provided for the Veteran. To be sure that the Veteran does not have a period of service after December 1965, for which there are no service treatment or personnel records currently in the claims file, the Board will remand for the RO to contact the records management regarding his periods of service and the seemingly incorrect PIES responses. The RO should additionally contact the Veteran and request that he provide his full dates of U.S. Navy service. It appears that the PIES response read the Veteran's second period of service backwards and with the wrong year (November 1963 to December 1965). Ongoing records The Veteran has argued that his left hip lymphoma may be due to his now service-connected lung cancer. By way of history, the Veteran was found to have a right lung nodule in August 2014. In May 2016, it was discovered that a nodule had grown and a second smaller lesion was found. As such, the Veteran was scheduled for a PET/CT scan, which additionally showed metabolic activity in his left femoral head. A biopsy revealed monoclonal B-cell population most consistent with a low-grade B-cell lymphoma. A bone marrow biopsy was normal without monoclonal B or plasma cells. Additional testing did not show evidence of lymphoma or leukemia in his blood. The oncologist discussed the "unusual presentation of this very unusual low-grade B-cell lymphoma, which is very rarely localized to only bone." The oncologist also discussed the possibility of his low-grade lymphoma converting to a higher grade and more aggressive large-cell type, but there was no mention of a relationship between his lung cancer and his lymphoma other than which cancer to treat first. They determined the Veteran should have his lymphoma treated with radiation prior to his lung surgery. The Veteran's left femoral head lesion was a "low-grade B-cell lymphoma, stage IAE." He was treated with radiation. In July 2017, a PET scan indicated that the B-cell lymphoma in the left femur that was treated with radiation therapy seemed to have resolved. However, there was possibly a "new lesion in the left humeral head." This was listed as "artifact vs. lymphoma vs. less likely metastatic lung cancer." It was noted that the Veteran would have a repeat PET/CT in 4 months. However, an August 2017 addendum indicated the PET scan would be repeated in six months. Given the possibility that the Veteran has an additional lesion or cancer presenting in his left humeral head, ongoing treatment records should also be obtained as they may provide the examiner with a greater understanding of the Veteran's health. In August 2017, the Veteran was afforded a VA examination. The examiner was asked to address whether the Veteran's left hip lymphoma was proximately due to his lung cancer. The examiner responded "the Veteran's B-cell lymphoma, left femur IS NOT proximately due to or the result of lung cancer." And provided the rationale "there is no basis in medical fact that supports this claim. B-cell lymphoma is not caused by squamous cell carcinoma of the lung." The VA examinations did not include an opinion as to whether the Veteran's left hip lymphoma was otherwise related to his military service, to include his asbestos exposure. On remand, an additional opinion should be sought based on a review of his medical records. Herbicide Exposure When the Veteran initially filed his claims for service connection for lung cancer and left hip lymphoma, he argued that they were due to exposure to Agent Orange/herbicides in service. The Veteran argued that he was exposed to Agent Orange on the USS Constellation due to the "aircraft that took off and landed with AO for missions in Vietnam." The claims file includes the Veteran's DD 214 for his period of service from November 1963 to December 1965 where he was noted to have served as a "Machinists Mate" and particularly with "ship and boat building and repair." A review of his service personnel records additionally indicated that the Veteran's MOS included ship repair, but did not include working with any aircraft. The claims file contains a May 2009 JSRRC response that stated that no U.S. Navy or Coast Guard ships transported tactical herbicides from the U.S. to Vietnam or that the ships stored, tested or transported tactical herbicides. JSRRC cannot document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The claims file additionally contains a history of the USS Constellation. She was stationed in the Gulf of Tonkin off of Vietnam in June 1964, where "embarked Carrier Air Wing (CVW) 14...and flew armed photoreconnaissance missions over Laos until" July 1964, when the Constellation moved to the Philippines (Subic Bay) for upkeep, and then Hong Kong for a visit for a few days. In August 1964, the Constellation returned to the Gulf of Tonkin where F-4B Phantom II's were launched for air cover support over two destroyers that were under attack. Additionally, the carrier launched retaliatory air strikes on an oil facility and naval vessels of the North Vietnamese. The Constellation then returned to San Diego, California. The Veteran left his service on the USS Constellation in December 1965. This history indicates that the aircraft onboard the USS Constellation flew over Vietnam as air cover support, and not as aircraft that would have sprayed herbicides. The Veteran has not argued that he had "boots on the ground" in the Republic of Vietnam, or another country where the U.S. used herbicides. The record does not indicate that he served in the Republic of Vietnam. Regarding his argument that he was in contact with aircraft that landed in Vietnam, the Board finds that the evidence does not support these statements. First, it does not appear that the aircraft that took off from the USS Constellation landed in Vietnam, but instead provided air cover and air strikes. Second, the Veteran's MOS does not indicate that he would have been involved in repair or maintenance of any aircraft on the ship. As such, the Veteran's argument that he was exposed to Agent Orange or other herbicides during his service on the USS Constellation is not competent or credible. As such, the Board will not request additional development related to this theory of entitlement on remand. Accordingly, the case is REMANDED for the following action: (Please note, 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 request that he confirm his dates of active duty service with the U.S. Navy. 2. If the Veteran indicates he had service during a period other than from October 1959 to March 1963 and from November 1963 to December 1965, then the RO should request service treatment and personnel records for these additional periods of service. 3. Ongoing VA treatment records from August 2017 to the present should be obtained, to include the results of any follow-up PET/CT scans. 4. The RO should have an oncologist review the Veteran's claims file and provide the following opinions: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's left hip B-cell lymphoma is due to or related to his military service? b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's left hip B-cell lymphoma is due to his exposure to asbestos in service? c) Is it at least as likely as not (50/50 probability or greater) that the Veteran's left hip B-cell lymphoma is proximately due to or caused by his service-connected lung cancer? A full explanation/reasoning must be provided for each opinion expressed. 5. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).