Citation Nr: 20039913 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-49 558 DATE: June 11, 2020 ORDER Service connection for non-Hodgkin’s lymphoma is denied. FINDING OF FACT The Veteran's non-Hodgkin’s lymphoma did not have its onset in nor is it etiologically related to his active service, to include asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for non-Hodgkin's lymphoma have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from May 1981 to May 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO) that reopened the claim for service connection for non-Hodgkin’s lymphoma while denying the underlying service connection claim. Although the July 2014 rating decision characterized the claim as one requiring new and material evidence to reopen, the Board finds upon further review of the record that new and material evidence is not necessary in this matter. Specifically, the Veteran’s claim for service connection for non-Hodgkin’s lymphoma was denied originally in an October 2012 rating decision. He was notified of that decision in November 2012. That same month, the Veteran filed a notice of disagreement with the October 2012 rating decision. He was then issued a Statement of the Case (SOC) in March 2014 and advised that he had 60 days from the date of that correspondence to complete his appeal by filing a VA Form 9, substantive appeal. Although the Veteran did not respond to the March 2014 SOC by filing a substantive appeal, he did submit new and material evidence in support of his claim that was received by VA in April 2014, and within the 60 day period in which he had to formalize his appeal. Pursuant to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Furthermore, according to 38 C.F.R. § 19.31(b), the RO will furnish to the Veteran and his representative a Supplemental SOC (SSOC) if their office receives additional pertinent evidence after a SOC or the most recent SSOC has been issued and before the appeal is certified and the appellate record is transferred to the Board. In this case, instead of furnishing the Veteran with an SSOC, the RO responded to the April 2014 submission by advising him that he had been previously denied service connection for non-Hodgkin’s lymphoma in November 2012 and that the rating decision was now final. See April 2014 Correspondence. Consequently, in June 2014, the Veteran filed a formal request to reopen his claim for service connection for non-Hodgkin’s lymphoma, which resulted in the July 2014 rating decision currently on appeal to the Board. As noted above, however, the Veteran’s additional submission in April 2014 constituted new and material evidence and was received prior to the expiration of the appeal period. Moreover, the Veteran was incorrectly advised in April 2014 that the November 2012 rating decision was final when he had until May 2014 (i.e., 60 days from the date of the March 2014 SOC) to formalize his appeal. Accordingly, the Board finds that the Veteran’s service connection claim for non-Hodgkin’s lymphoma has remained pending since the October 2012 rating decision and new and material evidence is not necessary. Notably, the Veteran is not prejudiced by this finding as it is favorable. During this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. A transcript of the hearing is associated with the claims file. 1. Entitlement to service connection for non-Hodgkin’s lymphoma The Veteran claims that his non-Hodgkin’s lymphoma is due to asbestos exposure while working as a Machinist Mate during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of non-Hodgkin’s lymphoma, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of non-Hodgkin’s lymphoma began during service or is otherwise related to an in-service injury, event, or disease, including asbestos exposure. The Veteran claims that he was exposed to asbestos during service. In a May 2017 letter, the Veteran reported exposure to asbestos, without protection, while working aboard the USS Samson during service. The Veteran reported seeing asbestos wrapped pipes above his top bunk where he slept and having to clean asbestos wrapped pipes in the engine room every other day. The Veteran reported his largest exposure was when a main steam line pipe wrapped in asbestos leaked, and they had to change the asbestos on the pipes. The Veteran remembers breathing in asbestos fibers due to lack of ventilation and proper hazmat procedures. Here, complete military personnel records are unavailable. However, service records indicate that he served as a Machinist Mate and, as the Veteran's assertions are consistent with the duties he performed during service, probable asbestos exposure is conceded. The remaining question is whether there is a medical nexus between the Veteran's current non-Hodgkin’s lymphoma and active military service, to include asbestos exposure. The record contains no supporting medical evidence linking the Veterans non-Hodgkin’s lymphoma and active military service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis related to non-Hodgkin’s lymphoma. They do show, however, that in 1984, the Veteran was noted to have a ½ inch x 1inch soft tissue mass found in his distal anterior lower leg. The soft tissue mass was not found on his service separation physical exam in 1985. In February 2014, a VA examiner reviewed the Veteran’s claims file and opined that the claimed non-Hodgkin’s lymphoma was less likely than not related to the Veteran’s active duty military service. The examiner stated that the in-service tissue mass was most likely a benign fibroma and that the finding was completely unrelated to the Veteran’s diagnosis of non-Hodgkin’s lymphoma in 2008, as that was found in a lymph node under his chin. The examiner explained that follicular non-Hodgkin’s lymphoma occurs in older adults and presents in the lymph nodes, bone marrow or spleen. The examiner further noted that follicular non-Hodgkin’s lymphoma would not be present in the body for 24 years before it was diagnosed. In May 2014, the Veteran submitted a private disability benefits questionnaire (DBQ). The DBQ includes a diagnosis of stage 3 non-Hodgkin’s lymphoma and outlines the Veteran’s chemotherapy treatment plan and symptoms associated with the disease. However, the physician who completed the DBQ did not provide an opinion as to the etiology of the Veteran’s non-Hodgkin’s lymphoma. In July 2014, the Veteran submitted a Notice of Disagreement with several medical articles. The Veteran submitted abstracts of two separate studies conducted by the National Institute of Health exploring the connection between asbestos exposure and non-Hodgkin’s lymphoma. The Veteran contended that both studies established a strong connection between asbestos exposure and the onset of non-Hodgkin’s lymphomas. In addition, the Veteran submitted a published statement from Stanford University of Medicine as well as two medical articles by Occupational Environmental Health addressing the relationship between asbestos exposure and the development of non-Hodgkin’s lymphoma. In July 2017, the Veteran’s claims file was forwarded to a VA examiner for a medical opinion. Following a review of the evidence, which included the Veteran’s statements and medical articles submitted in support of his claim, the opinion from the prior VA examiner, service records, and postservice treatment records, the VA examiner opined that the Veteran’s non-Hodgkin’s lymphoma was not incurred in or caused by an in-service injury, event or illness, to include asbestos exposure. As rationale for that opinion, the examiner explained that although it was the Veteran’s belief that the medical articles he had submitted supported a finding that there was a relationship between asbestos exposure and non-Hodgkin’s lymphoma, that was not the case. The examiner noted that the actual conclusion from the September 2001 abstract was that a causal relationship between asbestos exposure and the subsequent development of lymphomas could not be derived from the available study results, and the November 1987 abstract addressed male patients with large-cell lymphoma primary to the gastrointestinal tract and oral cavity who had evidence of substantial exposure to asbestos. As for the published statement from Stanford University of Medicine, the examiner found that the focus of the article concerned infectious diseases being the number two cause of cancer after smoking. Although the article did mention asbestos exposure, it was in the context of the general population believing it to be a cause of cancer. The article did not mention asbestos exposure in relation to any finding from a research study, and the examiner stated that she could not find anywhere in the article where its author had “strongly” supported asbestos being a cause of cancer (as claimed by the Veteran). Therefore, after review, it has been determined that the evidence provided by the Veteran, review of service treatment records and review of medical evidence fails to support the diagnosis of non-Hodgkin’s lymphoma as having been incurred in or being caused by asbestos exposure during service. The Board finds the February 2014 and July 2017 VA examiners’ opinions, in combination with the STRs, to be highly probative evidence to resolve this matter. The examiners indicated their review of the claims file and considered all the Veteran's assertions. The July 2017 VA examiner's opinion, in particular, is probative because it is based on an accurate medical history, considers the Veteran’s contentions, reviews the medical articles he submitted in support of the claim, and provides an explanation that contains clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In comparison, the May 2014 private DBQ does not contain a medical opinion addressing the etiology of the Veteran’s non-Hodgkin’s lymphoma and, as discussed by the July 2017 VA examiner, the medical articles submitted by the Veteran fail to provide a nexus linking his non-Hodgkin’s lymphoma to his active duty service, to include any asbestos exposure therein. Consequently, the Board gives more probative weight to the VA examiners’ opinions. The only other evidence of record suggesting a link or nexus between the Veteran's current non-Hodgkin’s lymphoma and service comes from the Veteran and his wife. While the Veteran and his wife are competent to provide statements relating to symptoms or facts of events that he or she has observed and is within the realm of their personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The cause of non-Hodgkin’s lymphoma disease is a complex question, not a simple one, and under the facts of this case, not a question that can be answered by a lay person. As such, the Veteran and his wife’s statements to this effect are lacking in probative value. The Board acknowledges that the record does not contain any VA treatment records dated after 2017 and, at the March 2020 Board hearing, it was the Veteran and his wife’s testimony that since 2017, his treatment providers have indicated to them that they feel his non-Hodgkin’s lymphoma is related to asbestos exposure. However, when questioned further, the Veteran conceded that any more recent treatment records would only contain records related to the treatment of the disability and would not contain any opinions concerning its etiology. The Veteran and his wife also discussed at length the reluctance VA treatment providers have in sharing their opinions in writing. Accordingly, the Board declines to develop for these more recent records as it not demonstrated that the Veteran would derive any benefit from delaying the adjudication of his claim through remand. To the extent the Veteran and his wife testified that treatment providers have indicated to them that the Veteran’s non-Hodgkin’s lymphoma is related to asbestos exposure, the Board does not question their competency or credibility in relaying what treatment providers have told them about the Veteran’s disability. Nevertheless, it is noted that the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion and, in this case, since the Veteran’s treatment providers have not submitted any statements on his behalf, the Board is unable to weigh properly the probative value of their medical opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). At the March 2020 Board hearing, the undersigned VLJ explained to the Veteran the three elements of service connection. It was also pointed out that there were no favorable medical opinions of record and that the medical articles submitted by the Veteran had been reviewed by a VA examiner and found to be not supportive of his claim. The record was then held open for 60 days for the Veteran to obtain a medical opinion; however, no additional evidence has been received since the hearing. The Board is sympathetic to the Veteran’s position that he has been unable to obtain a favorable medical opinion because his treatment providers are unwilling to provide one in writing. However, it is nevertheless emphasized that the Board may only review what is available in the claims file. As explained above, the competent evidence of record does not establish that the Veteran’s non-Hodgkin’s lymphoma is related to his active duty service, to include his asbestos exposure therein. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for non-Hodgkin’s lymphoma. Therefore, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, E. Kilbride The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.