Citation Nr: 21000703 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-60 462 DATE: January 6, 2021 ORDER The claim of entitlement to service connection for diffuse large B-cell lymphoma is granted. FINDING OF FACT The probative, competent evidence is at least in relative equipoise as to whether the Veteran’s diffuse large B-cell lymphoma is related to his active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for diffuse large B-cell lymphoma have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Navy from July 1963 to July 1967. Unfortunately, the Veteran passed away in June 2017. The appellant is the Veteran’s surviving spouse and was substituted with regard to the claim on appeal. In October 2020, the appellant testified at a virtual teleconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the December 2020 Board hearing, the appellant’s representative raised the issues of entitlement to a total disability rating based on individual unemployability (TDIU) and entitlement to service connection for neuropathy. However, as a substitute claimant, the appellant cannot make new contentions after the death of the Veteran. There is nothing in the claims file that shows that the issue of employability was sufficiently raised as part of a pending appeal for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to TDIU is raised during the administrative appeal of the increased rating or initial rating assigned for the underlying disorder or disorders, it is a part of the claim for benefits for that disorder or disorders). At the time of his death, the only pending appeal was the issue of entitlement to service connection for diffuse large B-cell lymphoma. Additionally, the Veteran was not service connected for any disorder at the time of his death. Therefore, his neuropathy may not be considered secondary to a service-connected disorder. Entitlement to service connection for diffuse large B-cell lymphoma. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309 (e) shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). For early-onset peripheral neuropathy, the presumptive service connection is warranted if the disorder manifested to a degree of 10 percent or more within one year after the Veteran’s last exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(ii). The appellant asserts that the Veteran’s diffuse large B-cell lymphoma was the result of in-service exposure to various toxic chemicals, to include trichloroethylene (TCE), benzene, and Agent Orange. Initially, the Board finds that in-service exposure to herbicides is not conceded. The Veteran asserted that he was exposed to Agent Orange while stationed at the Naval Air Station in Alameda, California from July 1963 to July 1967. He reported that he was exposed by working on aircraft covered with Agent Orange. The record does not reflect that the Veteran had any foreign service, to include service in Vietnam. Therefore, the provisions related to presumptive exposure to herbicide agents are not for application. See 38 C.F.R. § 3.307. However, the Board finds that the evidence is at least in equipoise as to whether the Veteran was exposed to other toxic chemicals during service, to include TCE and benzene. In this regard, the Veteran’s service personnel records show that his military occupational specialty was an aviation structural mechanic. Service treatment records dated in September 1964 show that the Veteran splashed paint thinner in his left eye. In A December 2015 statement, the Veteran described his use of TCE during service when spraying TCE to remove surface dirt from the aircraft, when performing maintenance on ground support equipment, and as a solvent to remove grease and paint from his body. An August 2016 VA examination report confirmed the Veteran’s 2005 diagnosis of non-Hodgkin’s lymphoma. The examiner noted the Veteran’s post-service work in the aviation maintenance field for 38 years. He also owned a furniture manufacturing company, but claimed he was not involved in finishing the furniture. The examiner opined that the Veteran’s diffuse large B-cell lymphoma was less likely than not incurred in or caused by service. In support of the rationale, the examiner provided a historical summary of TCE use and noted that it was first widely produced in the 1920s and used as a volatile anesthetic in North America from the 1930s to the 1970s. The examiner stated that the greatest use of TCE was as a degreaser, but that the demand for such use declined in the 1950s due to the availability of a less toxic substance. The examiner noted that use of TCE as a degreaser did resurge and stabilizers were developed. Occupational exposure to TCE is known to cause toxic effects in the liver and kidney. However, there was no literature regarding large B-cell lymphoma and TCE exposure. The examiner also noted that the risk factors for large B-cell lymphoma include middle-age or elderly, male, and Caucasian. The Veteran also had post-service occupational exposure to toxic chemicals. The appellant submitted a December 2019 private medical opinion completed by C.K., a board-certified radiation oncologist and a professor of radiation oncology. Following a review of the Veteran’s claims file, Dr. K. concluded that the Veteran’s diffuse large B-cell lymphoma was at least as likely as not caused by his in-service exposure to TCE and benzene. It was noted that the Veteran’s military duties included repairing aviation support equipment, assisting in the maintenance of aircraft, and cleaning aircraft. His military duties exposed him to JP-4 and other various fuels containing high levels of benzene. Dr. K. reviewed the historical use of benzene and TCE as a metal degreaser from the 1950s to the 1990s. All regulating agencies have found that benzene and TCE are human carcinogens and are not currently used as solvents. Dr. K. stated that the Veteran did not have any personal risk factors other than his exposure to the solvent TCE and benzene. His other medical issues and risk factors were that he was Caucasian, no family history of lymphomas, did not abuse alcohol, was a smoker, and no other known exposure to carcinogens. The Veteran’s post-service occupation was an office manager for an aircraft maintenance manufacturer. Dr. K. listed other risk factors for non-Hodgkin’s lymphoma including hereditary immunodeficiency disorders, certain infections, autoimmune disorders, and exposure to environmental toxins. The Veteran had none of those risk factors, other than exposure to organic solvents and benzene. Moreover, the Agency for Toxic Substances and Disease Registry found that there was sufficient evidence that TCE or benzene exposure caused non-Hodgkin’s lymphoma. In January 2020, the appellant submitted an article finding that the Naval Air Station in Alameda, California is a Superfund site that closed in 1997. The wastes generated at the base included industrial solvents, acids, paint strippers, degreasers, caustic cleaners, pesticides, chromium, cyanide wastes, waste oils containing polychlorinated biphenyls, radium associated dial painting and stripping, medical debris, and inert and unexploded ordnance. Upon review of the record, the Board finds that service connection is warranted for diffuse large B-cell lymphoma. After reviewing the conflicting medical opinions of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran was exposed to TCE and benzene during service. Dr. K. opined that the Veteran’s diffuse large B-cell lymphoma was caused by his in-service exposure to TCE and benzenes. The December 2019 private medical opinion is probative as it was based on a review of the Veteran’s medical records and was supported by well-reasoned rationale. Accordingly, resolving the benefit of the doubt in the appellant’s favor, the Board finds that the Veteran’s diffuse large B-cell lymphoma was causally related to service. Therefore, service connection for diffuse large B-cell lymphoma is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, Associate Counsel 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.