Citation Nr: 1803762 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-13 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for non-Hodgkin lymphoma of the right hip and the residuals thereof. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 12, 2014. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1960 to January 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2016. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The most probative evidence of record indicates the Veteran's non-Hodgkin lymphoma affecting his right hip is not etiologically related to service. 2. The preponderance of the evidence demonstrates that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities throughout the current appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for non-Hodgkin lymphoma affecting the right hip have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2017). 2. The criteria for a TDIU prior to March 12, 2014 have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent a VA examination in connection with the instant claim; moreover, the Board sought an expert medical opinion through the Veterans Health Administration, which opinion was received into the record in December 2017. The Board finds this expert opinion adequate, because it included a thorough review of the medical file, including the lay statements of record, and because it is supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Service connection for non-Hodgkin lymphoma of the right hip and the residuals thereof Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, 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 manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Veteran's bone cancer of the right hip, diagnosed as inguinal non-Hodgkin Lymphoma (NHL), is among those disabilities listed in § 3.309. There is no evidence that the Veteran's NHL manifested in service or within a year of separation; the initial diagnosis was furnished in May 2012. Service treatment records reveal that the Veteran was involved in a motor vehicle accident in December 1961. He has argued that his NHL is related to the accident; specifically, that the cancer had a tropism for the area of his body injured in the accident, his right leg and hip. The Veteran's contention is supported by a March 2013 letter submitted by T.S., M.D., a treating provider, who stated that it was "likely that [the accident and injury] is why the cancer had a tropism for attacking this area of the body," including the right hip, pelvis, and leg. An April 2014 statement submitted by the Veteran in support of his claim maintained that his "physicians state that the abnormalities caused by the traffic accident I was in...caused the cancer in my right hip area." The Veteran was afforded a VA examination in June 2016 to explore the etiology of his cancer. The examiner opined that it was less likely than not that the Veteran's cancer related to his in-service accident, explaining he "was unable to find any evidence in the [service treatment records] related to a hip injury at any time during service," nor was there evidence of hip pain or dysfunction of any kind. The Veteran's cancer, however, was localized to the right hip. Moreover, the examiner stated that published research did not support the tropism concept advanced by the Veteran and his private provider. The examiner continued, "[w]hat may be possible to correlate is [NHL] that was never detected until symptoms started in the hip. By this time, sarcoma was already present. This would not be unusual, as this type of cancer and problem is often hard to detect or is detected only when cancer has already set in. Without skeletal x-rays to compare and review from time of service, it would be difficult to ascertain when [NHL] started. Thus, I am unable to support direct service connection." Faced with conflicting opinions, the Board in August 2017 sought the opinion of an oncologist through the Veterans Health Administration, which opinion was received in September 2017. That expert oncologist stated, "NHL is known to be associated with chronic inflammatory diseases such as Sjogren syndrome, celiac disease, and rheumatoid arthritis," but that acute trauma such as the type experienced in service had not been definitively linked to NHL. Hence, the expert concluded that the Veteran's "right hip trauma was extremely unlikely to have been casual for the development of NHL in his right inguinal region 51 years following the trauma." The examiner added that "the injury 51 years prior was also extremely unlikely to have resulted in any tropism of the lymphoma to affect the right inguinal region as the inguinal lymph nodes are a common site (16.4%) for involvement of NHL." The Board finds this opinion compelling, as it draws from a thorough review of the medical file, the various opinions of record, the lay statements of record, and the existing body of medical research on this issue. Accordingly, the Board considers the September 2017 expert opinion the most probative evidence of record on the question of etiology in this case. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his cancer in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his NHL. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of NHL is limited to the purview of someone with medical knowledge and training, such as the medical expert who supplied the September 2017 opinion in this case. In sum, the evidence does not show that it is at least as likely as not that NHL is related to active service. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the medical expert who supplied the September 2017 opinion. As the preponderance of the evidence is against the claim, service connection for non-Hodgkin lymphoma must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU prior to March 12, 2014 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Disabilities resulting from common etiology or a single accident will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. Id. The Veteran is service connected for traumatic brain injury with neurocognitive disorder and severe major depression with psychotic features; bilateral hearing loss; and tinnitus. His combined rating from September 2009 to March 2014 is 70%. The Veteran has been granted a TDIU as of March 12, 2014, but the question of entitlement prior to that date remains before the Board. The Veteran's application for entitlement to a TDIU was received May 20, 2013. The schedular requirements for assignment of a TDIU are met as of that date. The record shows the Veteran completed two years of college, and worked for many years as an HVAC technician. He last worked on a full-time basis in 2004. The Veteran underwent a VA examination to explore the impact of his service-connected disabilities in November 2016. The examiner reports that, due to his TBI and associated symptoms, he experiences relationship problems, sleep problems, poor appetite, and general malaise. The Veteran also has documented memory loss, and is unable to drive due to cognitive problems. He experiences frequent bouts of frustration and has been noted to have significant difficulty with sustained focus. Additionally, the examiner with whom the Veteran met in November 2016 stated the Veteran "often seeks isolation...and [experiences] increased irritability with work place stressors," adding the Veteran's cognitive symptoms "may impair his ability to recall items, handle workplace stress and complete employment activities." Based on this assessment, the RO granted entitlement to a TDIU from March 12, 2014. The record is bare of evidence suggesting the Veteran's symptoms worsened substantially during the period between May 2013 and March 2014. As such, the Board finds entitlement to a TDIU as of the earlier date is warranted in this case, for the reasons set forth above and for those outlined in the November 2016 rating decision granting entitlement as of March 2014. In sum, a preponderance of the evidence shows the Veteran's service-connected disabilities have rendered him unemployable under the applicable regulations since May 20, 2013. Entitlement to a TDIU is warranted from that date. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for non-Hodgkin lymphoma of the right hip and residuals thereof is denied. Entitlement to a TDIU prior to March 12, 2014, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs