Citation Nr: 21064045 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-55 672 DATE: October 18, 2021 ORDER Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicides or herbicidal agents is denied. FINDING OF FACT The Veteran's non-Hodgkin's lymphoma did not manifest in service or to a compensable degree within the applicable presumptive period; and is not otherwise etiologically related to an in-service injury, event, or disease, to include as due to herbicide exposure therein. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicides or herbicidal agents have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from May 1973 to May 1977 in the United States Navy. In a November 2016 substantive appeal, the Veteran requested a video conference hearing. In May 2018, the Veteran testified at a hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Pursuant to a May 2019 Board decision, this matter was remanded for additional development to include a directive to verify the Veteran's alleged exposure to herbicides or herbicidal agents during active service in the Republic of Vietnam. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Presumptive Service Connection - Herbicide Exposure 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). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude a veteran from establishing direct service connection with proof of actual direct causation. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110, 1131 (2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicidal agents The Veteran asserts that he is entitled to service connection for non-Hodgkin's lymphoma, to include as due to exposure to herbicidal agents. As a previously stated, 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 includes non-Hodgkin's lymphoma. 38 C.F.R. § 3.309 (e). Similarly, certain chronic disabilities, including other organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2014); 38 C.F.R. §§ 3.307, 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). In this case, the Veteran's military personnel records confirm a period of service during the Vietnam era, and the record shows that he was awarded the National Defense Service Medal. However, there is no evidence that he had "boots on the ground" in the Republic of Vietnam, or, that he served in waters where exposure to herbicidal agents has been confirmed. Therefore, herbicide exposure cannot be presumed. As a preliminary matter, the Board observes that the Veteran has provided multiple lay statements asserting exposure to herbicides in the Republic of Vietnam. In May 2019, the Veteran's claim was remanded with a directive to attempt to verify possible herbicide exposure. Requests for command histories and deck logs from the Veteran's period of service stationed aboard the USS Oriskany and USS Fresno found no evidence that either vessel was anchored or docked in a bay or harbor, traveled along rivers, or traversed the territorial offshore waters of Republic of Vietnam. Similarly, there is no evidence that the Veteran's official military occupation required "boots on the ground" in the Republic of Vietnam. In August 2021, VA issued an herbicide exposure verification memorandum indicating that a comprehensive search of relevant military personnel records, deck logs, and command histories and evidence does not show that the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. Therefore, exposure to herbicides cannot be conceded. Accordingly, the Board will consider whether the record supports a finding of service connection on a direct basis. Service treatment records are silent for complaints of symptoms, treatment, or a diagnosis of non-Hodgkin's lymphoma. Post-service treatment records confirm an initial diagnosis of non-Hodgkin's lymphoma on or about January 2010. Prescribed chemotherapy treatments were completed in October 2010. Other treatment records note a history of excessive smoking, to include a habit of 1/2 to 2.5 packs per day which dated back to age 17. The Veteran also endorsed a history of alcohol consumption, including a 6-pack per week. While a current diagnosis of chronic obstructive pulmonary disease is documented, service connection has not been granted for that condition. In September 2013, the Veteran was afforded a VA examination. The examiner acknowledged an initial diagnosis of non-Hodgkin's lymphoma in January 2010. During the clinical interview, the Veteran reported that he was evaluated at a VA clinic due to the appearance of a large mass on his chest. On referral from a dermatologist, a biopsy was conducted. The diagnostic impression revealed non-Hodgkin's lymphoma. An oncology evaluation recommended chemotherapy. Following treatment, the Veteran's condition was deemed in remission. Routine monitoring occurs every six months. Following a clinical evaluation, the examiner concluded that it was at least as likely as not that the Veteran's non-Hodgkin's lymphoma was incurred in or caused by exposure events during active service. In support of the stated conclusion, the examiner noted that B-cell lymphoma causes non-Hodgkin's lymphoma. As the Veteran reported exposure to multiple agents during active service, that exposure likely caused B-cell lymphoma. After a thorough review the record, the Board finds that the medical evidence is against the Veteran's claim of entitlement to service connection for non-Hodgkin's lymphoma. In reaching the stated conclusion, the Board notes that record evidence is silent for any competent and credible evidence linking the Veteran's non-Hodgkin's lymphoma to active service, to include his alleged exposure to herbicides or herbicidal agents therein. While the Board recognizes that a favorable etiological VA medical opinion was associated with the record in September 2013, little probative weight is accorded thereto, as its findings were based (in part) upon inaccurate factual information the reported exposure to chemical agents that is not supported by the facts of record. Further, an additional VA opinion is not warranted as the medical evidence is insufficient to suggest a nexus between the Veteran's condition and active service. Due consideration has been given to the Veteran's lay statements asserting exposure to herbicides or herbicidal agents during active service. However, an extensive review of the relevant military personnel records, deck logs, and command histories found no evidence of an exposure event. Accordingly, the Veteran's lay assertions are not credible as they are inconsistent with the evidence of record. Although the Board recognizes the Veteran's subjective belief that his non-Hodgkin's lymphoma is causally related to in-service exposures, the noted diagnosis requires specialized training and medical expertise sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), see also Clyburn v. West, 12 Vet. App. 296, (1999). As there is no evidence that the Veteran possesses the required medical expertise; his opinion is not competent medical evidence. Moreover, the Board observes that the herbicide exposure has not been established or conceded. In fact, the record is silent for any complaints, treatment or diagnosis of a conduction related not non-Hodgkin's lymphoma in service or for decades thereafter. CONTINUED ON NEXT PAGE Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a non-Hodgkin's lymphoma. As the preponderance of the evidence is against the claim, the benefit of the doubt is not for application. 38 C.F.R. § 5107 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.