Citation Nr: 1806744 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-03 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II to include secondary to Agent Orange and radiation exposure for the purpose of accrued benefits. 2. Entitlement to service connection for right eye cataract to include secondary to Agent Orange and radiation exposure for the purpose of accrued benefits. 3. Entitlement to service connection for non-Hodgkin's lymphoma to include secondary to Agent Orange and radiation exposure, for the purpose of accrued benefits. 4. Entitlement to service connection for peripheral neuropathy of the lower extremities to include secondary to Agent Orange and radiation exposure for the purpose of accrued benefits. 5. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Wood, Attorney ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active military service from November 1971 to September 1981. He died in September 2011. The Appellant is his surviving spouse and has been properly substituted as the Appellant for the purposes of claims pending before VA at the time of the Veteran's death. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in December 2015 and has been returned for review. FINDINGS OF FACT 1. The DD-214 (Armed Forces of the United States Report of Transfer or Discharge) lists the Veteran's occupational specialty as weapon control systems technician. 2. Non-Hodgkin's lymphoma was first shown many years subsequent to his separation from service, and is not shown to be related to such service. 3. Peripheral neuropathy of the lower extremities is not shown to be causally or etiologically related to any disease, injury, or incident in service, and, neuropathy did not manifest within one year of the Veteran's discharge from service. 4. Diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident in service, and, did not manifest within one year of the Veteran's discharge from service. 5. A right eye cataract was first shown many years subsequent to his separation from service, and is not shown to be related to such service. 6. The Veteran died in September 2011. The death certificate identified the immediate cause of death as staph sepsis due to or the consequence of neutropenia due to or the consequence of non-Hodgkin's lymphoma. 7. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss. 8. A service-connected disability did not cause or contribute substantially or materially to the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for service connection for non-Hodgkin's lymphoma have not been met. 38 U.S.C §§ 1110, 1131 (West 2014); 38 C.F.R. 3.303 (2017). 2. Peripheral neuropathy of the lower extremities was not incurred in or aggravated by the Veteran's active duty service and is not presumed to have incurred therein. 38 U.S.C §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. Diabetes mellitus type II was not incurred in or aggravated by the Veteran's active duty service and is not presumed to have incurred therein. 38 U.S.C §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for right eye cataract have not been met. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. 3.303 (2017). 5. The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. § 1310 (West 2014); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant, as did the Veteran, maintains that as result of radiation exposure, he developed peripheral neuropathy of the lower extremities and non-Hodgkin's lymphoma. During the Veteran's lifetime, he described working as a weapon control systems technician for over nine years. Applicable Laws and Regulations The law and regulations governing claims for accrued benefits, as applicable to this case, state that, upon the death of a veteran, his or her lawful surviving spouse may be paid periodic monetary benefits to which he or she was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 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. See 38 C.F.R. § 3.303 (d). The peripheral neuropathy of the lower extremities and diabetes mellitus are considered "chronic disease[s]" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303 (b) apply to the Veteran's claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Non-Hodgkin's lymphoma is not recognized as a chronic disease under 38 C.F.R. § 3.309 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Medical History The DD-214 lists the Veteran's occupational specialty as weapon control systems technician. The service treatment records (STRs) do not show complaints, findings, or diagnoses of diabetes mellitus, type II, bilateral lower extremity peripheral neuropathy, right eye cataract, or non-Hodgkin's lymphoma. The record contains private medical record showing treatment beginning in 2004. An April 2008 clinical report of a physical examination conducted by Rutland Family Clinic which included a diagnosis of diabetes mellitus. An April 2008 private radiology report includes a differential diagnosis of pulmonary lymphoma and metastatic disease, which was eventually diagnosed as non-Hodgkin's lymphoma in February 2009. VA outpatient record dated in August 2010 shows that the Veteran initiated treatment at a VA facility. He reported a diagnosis of diabetes mellitus. VA examination was conducted in April 2011. The Veteran reported a 3 year history of diabetes mellitus. Significantly, the examiner concluded that the Veteran's peripheral neuropathy is as least as likely secondary to his chemotherapy utilized in the treatment for lymphoma. VA eye examination was conducted in May 2011. The examiner noted a decrease in vision due to a right eye cataract, which was determined to be secondary to his underlying diabetes mellitus. Pursuant to a Board remand, a VA examination was conducted in February 2016 to obtain an opinion regarding the etiology of the non-Hodgkin's lymphoma. An internist reviewed the Veteran's military personnel file noting that the Veteran was weapon control systems technician for 9 years. The examiner acknowledged that the Veteran had exceptional knowledge of the AN/APQ radar system, which fitted in the nose cone of F-4 aircraft. The examiner noted that this type of system was directed forward and as a technician, the Veteran would have operated this system from the rear, minimizing exposure to nonionizing radiation. The examiner also pointed to a study in which findings suggest that young people are at an increased risk for a variety of disorders to include cancer when exposed to high-levels of RF/MW radiation for long periods and in settings where preventive measures were lax. The study also noted that there was a very short latency period for the self-reported disorders (to include testicular cancer, nasopharyngioma, non-Hodgkin's lymphoma, and breast cancer) to develop. See, "Cancer in Radar Technicians Exposed to Radiofrequency/Microwave Radiation: Sentinel Episodes" in the Internationale Journal of Occupational and Environmental Health 6 (3):187-93 (Internationale Journal of Occupational and Environmental Health) The physician stated that he was unable to find any other study that indicates radar technicians are at a greater risk for non-Hodgkin's lymphoma. This internist concluded that the non-Hodgkin's lymphoma was not related to non-ionizing radiation, given the fact the Veteran lymphoma was not shown until 27 years after service discharge. In providing the rationale, the examiner added, that even assuming the Veteran experienced high radar exposure, the latency period for the development of the lymphoma could not be considered short, since it did not develop for 27 years. The internist also consulted an oncology specialist who stated that there is no medical evidence that indicates that non-ionizing radiation causes or contributes to the development of non-Hodgkin's lymphoma. In regard to diabetes mellitus, the internist pointed out that he had extensive experience in the treatment of type II diabetes mellitus. He reviewed the record. The examiner noted that the Veteran was 222 pounds, which was 8 pounds over the military maximum weight limit when he separated from active duty in September 1981. He further noted that according to the April 2011 the Veteran weighed 280 pounds with a height of 75 inches. The Veteran reportedly had weighed 332 pounds in August 2010. The examiner concluded that the Veteran's diabetes mellitus was related to morbid obesity, which occurred decades after military service. In light of the fact that the Board's remand, requested an opinion by an oncologist, another opinion was obtained. In March 2016, a VA oncologist reported that the American Cancer Society provided supporting documentation that the Veteran's lymphoma is unrelated to RF radiation. The examiner summarized the study, pointing out that the results were inconclusive as to whether people who were exposed to RF radiation in their work environment were at greater risk for cancer. The oncologist indicated that there was no clear increase in cancer risk for these individuals and as such, it is inconclusive and not proven with a 50 percent or greater probability (which the examiner indicated is the VA criterion). The oncologist also referred to a second online source (from a website on the Internet at: http://www.uptodate.com) that did not mention non-Hodgkin's lymphoma as a possible consequence of exposure to non-ionizing radiation. A VA endocrinologist reviewed the Veteran's medical history noting several inservice urinalysis results, which were negative for the presence of glucose. This examiner concluded that without documentation of diabetes mellitus during service and in light of the fact that the Veteran did not serve in Vietnam, diabetes mellitus is unrelated to military service. Initial considerations Initially, as the Board noted in the prior decision, both type II diabetes mellitus and non-Hodgkin's lymphoma are among the disabilities presumed due to herbicide exposure. See 38 C.F.R. § 3.309 (e). Further, the Appellant has asserted that the Veteran told her on many occasions that he served in the Republic of Vietnam which, if accurate, would allow for the presumption of herbicide exposure. See 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran's service personnel records indicate the Veteran was assigned on two separate occasions to air bases in Thailand. The Veteran's service personnel records do not indicate an assignment to any station in Vietnam. Further, in his original April 2010 claim for benefits, the Veteran himself denied having served in Vietnam. Finally, the RO contacted the Veteran in July 2011, at which time he again affirmatively denied having served in Vietnam, but believed he was exposed to herbicides while stationed in Thailand. Significantly, the Veteran's occupational specialty is not one which would have necessitated service on or near the perimeter of a Royal Thai Air Force Base. As such, the record preponderates against finding that the Veteran was exposed to herbicides agents during service. With regard to the claim for non-Hodgkin's lymphoma, the Veteran asserted this disability was due to long-term exposure to radiation as a radar technician/repairman. Because radar equipment does not emit ionizing radiation, the provisions and presumptions contained in 38 C.F.R. §§ 3.309 (d) and 3.311 are not applicable in this case. However, the Board will review the claim based on the Veteran's exposure to non-ionizing radiation and his development of non-Hodgkin's lymphoma. The Board has considered the lay statements of the Veteran (and Appellant) and acknowledges that the Veteran is competent to give evidence about what he may have experienced or what he may have observed. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Veteran's statements regarding his work with nonionizing radiation are competent. However, the statements that the claimed conditions are related to service are outweighed by the medical evidence, to include VA examiners' opinions as summarized below. The Board gives greater probative weight to the reports and opinions of the evaluating VA examiners because of the consideration of the Veteran's pertinent medical and other history-as accomplished by reviewing the evidence in the e- file, but more so based on the discussion of the underlying rationale of the opinions, which instead is where most of the probative value is derived. These examiners also have medical expertise, which is another relevant consideration adding to the opinions' greater probative value. Moreover, the examiners' opinions are mostly supported by the other evidence of record. There also is no medical opinion in the file refuting the VA examiners' unfavorable opinions, and the lay statements are insufficient to rebut this opinion given their lessened probative value. Consequently, the Board finds that the medical opinions are more probative and credible regarding his claims for service connection. Non-Hodgkin's Lymphoma As noted above, the Veteran was diagnosed with non-Hodgkin's lymphoma in February 2009. Thus, the requirement for current disability has been met. In regard to element (2), in-service incurrence, the Veteran contends that he was exposed to radiation emitted while working as radar technician. The DD-214 lists the Veteran's occupational specialty as weapon control systems technician. The Board finds the Veteran's statements regarding exposure both competent and credible. Thus, the second element is also satisfied. However, the medical evidence of record does not include any statements or opinions that attribute the Veteran's non-Hodgkin's lymphoma to his military service. As noted above, the only medical opinions of record addressing this determinative issue of etiology of the Veteran's non-Hodgkin's lymphoma indicates that it is unrelated to military, including non-ionizing radiation. The VA examiners that provided the unfavorable opinions reviewed the medical and other evidence in the file for the pertinent history. In particular, the March 2016 VA physician who reviewed the case is a specialist and therefore particularly qualified to render an opinion as to the likely cause of the Veteran's specific condition. The examiners also reviewed the record and demonstrated knowledge of the Veteran's medical and military history. The physicians based their opinions on their substantial experience, and on a review of medical and scientific literature. Accordingly, the Board concludes that the preponderance of the evidence is against this claim for service connection for non-Hodgkin's lymphoma. And since the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in the Appellant's favor, and this claim must be denied. 38 C.F.R. § 3.102. Chronic Diseases: diabetes mellitus and peripheral neuropathy of the lower extremities Private as well as VA treatment and examination reports includes diagnoses of diabetes mellitus and peripheral neuropathy of the lower extremities. Thus, the requirement for current disability has been met. However, the service treatment records are silent in regard to either diabetes mellitus or peripheral neuropathy of the lower extremities while in service. The Veteran does not provide evidence to suggest either diabetes mellitus or peripheral neuropathy of the lower extremities was present during service. Absent an in-service injury or disease, direct service connection must be denied. There is also no evidence that either diabetes mellitus or peripheral neuropathy of the lower extremities was manifested to a compensable degree within one year of service separation. The first definite finding of diabetes mellitus is in 2009 according to Veteran and neuropathy of the lower extremities was found on VA examination in April 2011. Thus, as neither diabetes mellitus nor peripheral neuropathy of the lower extremities was not noted during service (let alone shown to be chronic), and as the STR's rather show no evidence of either diabetes mellitus or peripheral neuropathy of the lower extremities, service connection may not be established for neuropathy of the lower extremities as a chronic disease based on a chronicity in service or a continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b); Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). Service connection also is not established on a presumptive basis for neuropathy of the lower extremities that manifests to a compensable degree within one year of separation, since the Board finds it did not manifest at this time, as discussed above. See 38 C.F.R. §§ 3.307 (a), 3.309(a). Finally, the preponderance of the evidence weighs against a medical nexus between the Veteran's current disabilities and his period of service. As noted above, an April 2011 VA opinion found that it is as least as likely as not that peripheral neuropathy of the lower extremities is secondary to chemotherapy that was utilized in treating his non-service connected non-Hodgkin's lymphoma. Diabetes mellitus has been attributed to his obesity. In summary, the Board finds that the preponderance of the competent evidence weighs against the Veteran's claims for service connection for diabetes mellitus and peripheral neuropathy of the lower extremities. Therefore, the claims are denied. 38 U.S.C. § 5107. Right eye cataract As noted above, right eye cataract was diagnosed at VA examination in May 2011. While the Veteran meets the first (current disability) requirement of the service connection analysis, the most probative-meaning competent and credible-evidence is against this claim for a bilateral hip disability. The May 2011 VA physician found that it was less likely than not that the a right eye cataract was related to military service. The examiner attributed his right eye cataract to his underlying diabetes mellitus. Besides the unfavorable opinion the Board also notes that the Veteran's service treatment records are negative for any diagnosis of this disorder. The fact that there is no evidence of record that this disorder was diagnosed prior to 2011 (approximately 30 years after his separation from his period of active service) weighs against a finding that this disorder was present in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the competent evidence is against finding that any claimed disability is linked to service. A preponderance of the evidence is therefore against a finding that the Veteran's right eye cataract either had its onset during service or is related to disease or injury in active service. The reasonable doubt doctrine is not for application. Thus, service connection for a right eye cataract is not warranted. Cause of death With regard to the claim for the cause of the Veteran's death, a surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312 (b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. The official death certificate reflects that the Veteran died in September 2011. The immediate cause of death was staph sepsis due to or the consequence of neutropenia due to or the consequence of non-Hodgkin's lymphoma. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss. As noted above, the medical record is devoid of clinical evidence demonstrating that non-Hodgkin's lymphoma is related in any manner to the veteran's active service. See 38 C.F.R. § 3.303 (d). Moreover, the Board notes that the medical evidence does not demonstrate that the Veteran's service-connected disorder, caused or hastened to cause his death in any manner. The Board is cognizant of the Appellant's contentions, to the effect that her husband's fatal cancer was the product of exposure to radiation. The clinical record, however, does not contain any findings that there was an etiological or causal relationship between his fatal disorder and exposure to radiation. In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the Appellant's claim of service connection for the cause of the Veteran's death. . ORDER Service connection for non-Hodgkin's lymphoma, for accrued benefits purposes is denied. Service connection for peripheral neuropathy of the lower extremities, for accrued benefits purposes is denied. Service connection for diabetes mellitus type II, for accrued benefits purposes is denied. Service connection for right eye cataract, for accrued benefits purposes is denied. Service connection for the cause of the Veteran's death is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs