Citation Nr: 1819795 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 15-00 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for parotid acinic cell cancer status post parotidectomy. 2. Entitlement to service connection for lymphoma (non-Hodgkin's). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD T. Wishard INTRODUCTION 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). The Veteran had active military service from October 1959 to October 1963. These matters come before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Providence, Rhode Island. These matters were previously before the Board in September 2017 when the Board remanded them for the Veteran to be scheduled for a requested Decision Review Officer (DRO) hearing. The Veteran failed to appear for his DRO hearing, requested a Board hearing in lieu of a DRO hearing, and cancelled his subsequent request for a Board hearing. (See January and March 2018 VA Forms 27-0820). Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (d), (e) (2017). FINDINGS OF FACT 1. The Veteran is not presumed to have been exposed to an herbicide agent in service, and the most probative evidence does not reflect that he was so exposed. 2. The Veteran did not have 30 days or more of service at Camp Lejeune, North Carolina. 3. The earliest clinical evidence of parotid acinic cell cancer and/or lymphoma (non-Hodgkin) is not until several decades after separation from service. 4. The most probative evidence is against a finding that the Veteran's parotid acinic cell cancer and/or lymphoma (non-Hodgkin's) are causally related, to or aggravated by, active service. CONCLUSIONS OF LAW 1. The criteria for service connection for parotid acinic cell cancer status post parotidectomy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for lymphoma (non-Hodgkin's) have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that his disabilities are due to chemical exposure in service. He contends that while stationed in Camp Sukiran in Okinawa in 1961 - 1962, he handled 55 gallon drums of "Agent Orange liquid." He also contends that while at Cherry Point, North Carolina, he inhaled vapors, fumes, and other chemical elements. The Veteran's DD 214 reflects that he was in the Marine Corps and that his primary specialty was the equivalent of a warehouse man. The Board has considered all of the Veteran's contentions, but finds, as detailed below, that the presumption of exposure to an herbicide agent is not warranted and that there is not competent credible evidence of any such exposure. The claims file includes a VA (Personnel Information Exchange System (PIES) request for information on possible herbicide agent exposure and a December 2012 response from the National Personnel Records Center which reflects "no records of exposure to herbicides." A January 2013 memorandum from the Joint Service Records Research Center(JSRRC) is a Formal Finding that there is a lack of information to verify that the Veteran was exposed to herbicides. In his 2012 application for compensation, the Veteran stated that he handled 55 gallon drums of Agent Orange while stationed at Camp Sukiran, Okinawa. He also asserted that while in Okinawa, he worked guard duty, guarding hundreds of 55 gallon drums, but he admitted that he did not know the contents of the drums. In support of his contention, he submitted numerous articles on herbicide agents. Initially, the Board notes that Camp Sukiran (Okinawa) is not a base for which presumptive herbicide exposure is warranted. VA recognizes herbicide exposure as having occurred during certain times in Vietnam, and during certain times and in certain areas of Korea and Thailand. Okinawa is not a recognized place for such exposure. Moreover, VA maintains a list of places where herbicide testing was done and/or an herbicide agent was stored; again, Okinawa is not a recognized place. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides in service. The Board has considered the articles submitted by the Veteran; however, they are not persuasive as to herbicide agent exposure by the Veteran. None of the articles relates directly to the Veteran. The article "Okinawa: The Pentagon's Toxic Heap of the Pacific" reports that damaged barrels of herbicide were shipped to Okinawa in 1969; this would have been more than five years after the Veteran separated from service. The article "Agent Orange on Okinawa - The Smoking gun" discusses chemicals used at Johnston Atoll and Naha Port, Okinawa, with reference to a service member being stationed there beginning in 1965 (more than a year after the Veteran separated from service) and the spraying of defoliants in 1966 (more than two years after the Veteran separated from service). The article "Okinawa Dumpsite Offers Proof of Agent Orange: Experts Say," reports that a Dow Chemical spokesperson told journalists that the type and markings on the containers discussed were inconsistent with the way it shipped defoliants. It also notes that an Okinawa Defense Bureau spokesperson told the Japan Times that the possibility that they contained defoliants was "slim". It further discusses the presence of Agent Orange in 1970 at Kadena Air Base, which was more than six years after the Veteran separated from service. The Japan Times News article with regard to biological weapons in Okinawa discusses "rice blast fungus" released over paddies, and does not reflect that an herbicide agent of 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram was used during the Veteran's time in Okinawa. Finally, the American Cancer Society article does not offer evidence that an herbicide agent was used in Okinawa. The Board will next address the Veteran's contention that he was exposed to an herbicide agent and/or other chemical in Cherry Point, North Carolina. VA does not recognize Cherry Point, North Carolina as a location at which herbicides were used, tested and/or stored. Moreover, none of the articles submitted by the Veteran provide probative evidence of such. The Veteran asserted that while in North Carolina, on one occasion, he had to remove heavy grease used to preserve weapons from the elements. He explained that the process was to unwrap the weapons, load the weapons into a steel basket, lower the basket into a pit of vapors and fumes, and after a period of time, raise the basket to check if the weapons were clean. Once cleaned, the weapons were removed and stacked on skids for transport. The Veteran reported that during the process, he was smelling and inhaling vapors and fumes, and handling the weapons. He also asserted that he handled "all kinds of supplies" to include 55 gallon drums of liquids labeled with a skull and cross bones, and that times the drums leaked, requiring the Veteran to clean the area. (See December 2012 VA Form 21-4138.) The Board finds that the Veteran has not been shown to be competent to identify the actual chemicals used, and he himself has acknowledged that he was unaware of the exact chemical or chemicals. The Veteran has also submitted an article titled "Camp Lejeune Toxic Legacy." The article also mentions that a firm found lower concentrations of contamination in the drinking water in the 1980s at the Marine Corps Air Station at Cherry Point, North Carolina; however, VA regulations do not provide for presumptive service connection for exposure at Cherry Point, and there is no probative clinical evidence indicating a relationship between this Veteran's lymphoma and service. Non-Hodgkin's lymphoma is a disease associated with contaminants at Camp LeJeune. 38 C.F.R. § 3.309(f); however, the Veteran has not asserted, and his personnel records do not show, that he was stationed at Camp Lejeune. The Veteran has stated that "common sense dictates that agent orange or other deadly toxins had to be gathered at one or many points to be used as defoliants in Vietnam or other countries around the world. . . . . I believe agent orange was stored on Okinawa Japan and used as a defoliant on bases [and] jungle training site that we were exposed to not knowing the deadlyness [sic] of these Toxins. My position has not changed. I believe I was exposed to these chemicals while stationed in Okinawa and the United States wich [sic] caused my cancers." (See VA Form 9.) While the Board does not doubt the sincerity of the Veteran's beliefs, he has not been shown to be competent to identify herbicides, including those (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) for which presumptions of service connection may apply. 38 C.F.R. § 3.307 (a)(6). With regard to his contention as to other fuels, chemicals, fumes, and/or possible water contaminated with chemicals, the Veteran has not been shown to be competent to address their chemical nature or to provide an opinion that exposure was as likely as not the cause of his disabilities. Service connection for parotid acinic cell cancer status post parotidectomy The Veteran had a right parotidectomy in 2004 after being diagnosed with cancer. An April 2013 VA record reflects that there was no evidence of current parotid acinic cell cancer. The Board notes that parotid acinic cell cancer is a cancer situated or occurring near the ear (parotid) and not a disease for which presumptive service connection based on herbicide agent exposure is warranted. 38 C.F.R. § 3.309 (e). As noted above, the most probative evidence does not support a finding that the Veteran was exposed to herbicides in service. As noted above, the Veteran has also submitted an article titled "Camp Lejeune Toxic Legacy". Parotid acinic cell cancer is not a disease subject to service connection under 38 C.F.R. § 3.309(f). The article also mentions that a firm found lower concentrations of contamination in the drinking water in the 1980s at the Marine Corps Air Station at Cherry Point, North Carolina; however, VA regulations do not provide for presumptive service connection for exposure at Cherry Point, and there is no probative clinical evidence indicating a relationship between this Veteran's cancer and service. The Veteran's STRs are negative for pertinent complaints, treatment, or diagnosis. The earliest clinical evidence of the cancer is not for approximately four decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of cancer, and exposure to toxins. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service connection for lymphoma The Veteran's STRs are negative for complaints, treatment, or diagnosis of non-Hodgkin's lymphoma. He was initially diagnosed with non-Hodgkin's lymphoma (follicular) of the left hip in 2010 after noticing a mass near his groin for a few months. This was more than four decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent credible evidence of record that the Veteran's disability is causally related to, or aggravated by, active service. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of non-Hodgkin's lymphoma, and exposure to toxins (fumes, vapors, chemicals). The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for parotid acinic cell cancer status post parotidectomy is denied. Entitlement to service connection for lymphoma (non-Hodgkin's) is denied. ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs