Citation Nr: 21008242 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-52 109 DATE: February 12, 2021 ORDER Entitlement to service connection for non-Hodgkin’s lymphoma is denied. Entitlement to service connection for Hodgkin’s disease is denied. REMANDED Whether new and material evidence has been received to reopen the claim for service connection for seminoma of anterior mediastinum is remanded. FINDINGS OF FACT The most probative evidence indicates the Veteran’s cancer was not a form of non-Hodgkin’s lymphoma or Hodgkin’s disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for non-Hodgkin’s lymphoma have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for Hodgkin’s disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was last before the Board in February 2020, when it was remanded for further development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). The Veteran’s service personnel records confirm that he served in the Republic of Vietnam during the Vietnam War, and exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). When a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for a number of disorders listed under 38 C.F.R. § 3.309(e), including non-Hodgkin’s lymphoma and Hodgkin’s disease. The presumption requires both exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the relevant time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii) (2019). 1. Entitlement to service connection for non-Hodgkin’s lymphoma 2. Entitlement to service connection for Hodgkin’s disease The Veteran contends he suffered from Hodgkin’s lymphoma or non-Hodgkin’s lymphoma due to in-service exposure to herbicide agents in Vietnam. A January 1980 medical statement notes that the Veteran was treated in May 1974 for swelling in the face, neck and arms of several weeks’ duration, with associated shortness of breath. Chest x-ray showed a large lobulated anterior mediastinal mass displacing the distal trachea and left main bronchus. The Veteran had median sternotomy and biopsy of mediastinal mass. He received radiation therapy. A June 2006 progress notes indicates status post seminoma with radiation of the chest and testicles. A December 2007 letter from the Veteran’s private physician, Dr. E.R. notes that the Veteran has a history of “an apparent Hodgkin’s lymphoma treated with radiation therapy in 1974”. Dr. E.R. indicates that the Veteran’s history is complicated by antecedent radiation therapy in 1974 for an apparent large lymphoma involving his mediastinum. He received a total of six months radiation therapy, with the total unit of absorbed radiation dose unknown. As the record showed conflicting names for the type of cancer in the Veteran’s file, VA requested an opinion in August 2008 to address whether the cancer found in 1974 is a form of non-Hodgkin’s lymphoma, soft tissue sarcoma or represents Hodgkin’s disease. In August 2008, a VA examiner opined that the Veteran’s cancer is a seminoma, which is not a non-Hodgkin’s lymphoma, soft tissue sarcoma or represents Hodgkin’s disease. The examiner provided the rationale that the pathological report for the biopsy of the tumor of the chest cavity was seminoma. He explained that seminoma is not non-Hodgkin’s lymphoma nor soft tissue sarcoma and it does not represent Hodgkin’s disease. The examiner explains that the evidence before us says that this is a seminoma with adequate treatment and seminoma is simply not non-Hodgkin’s lymphoma nor soft tissue sarcoma and it does not represent Hodgkin’s disease. The Board finds the VA examiner’s opinion highly probative and entitled to great weight. The examiner reviewed the claims file, including the Veteran’s service treatment records, lay statements and medical history; examined the relevant facts; and provided reasoned and detailed rationale for the conclusion reached that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the opinion is highly probative and persuasive and support a finding that the Veteran’s cancer in 1974 was not non-Hodgkin’s lymphoma, soft tissue sarcoma and neither does it represent Hodgkin’s disease. The Board notes that in October 2015, a VA examiner indicated that the Veteran was diagnosed with non-Hodgkin’s lymphoma /thymoma seminoma type in 1974. However, in a November 2015 addendum opinion, that same examiner clarified that the Veteran had thymoma, which is an uncommon tumor originating from epithelial cells of the thymus. The examiner corrected that she did not see any evidence of non-Hodgkin’s lymphoma, Hodgkin’s, or soft-tissue sarcoma. Thus, it is less likely than not that Veterans cancer can be classified as non-Hodgkin’s lymphoma, Hodgkins, or soft-tissue sarcoma. Based on the foregoing, the Board finds that the most probative evidence indicates that the Veteran’s previous cancer was a seminoma, not Hodgkin’s disease or non-Hodgkin’s lymphoma. As the most probative indicates that the Veteran did not suffer from Hodgkin’s disease or non-Hodgkin’s lymphoma, service connection for those disabilities cannot be established. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Degmetich v. Brown, 104 F.3d at 1332. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as a preponderance of the evidence is against the claim, that doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Whether new and material evidence has been received to reopen the claim for service connection for seminoma of anterior mediastinum is remanded. In April 2015 the Veteran filed a claim for service connection cancer. In the November 2015 rating decision, the RO reopened the claim for service connection for seminoma but denied the claim. The Veteran submitted a timely notice of disagreement (NOD) with that decision. While he listed the condition as non-Hodgkin’s lymphoma on the NOD, based on the history of this case and the confusion surrounding the diagnosis for his cancer in 1974, the Board finds the NOD sufficient to identify the seminoma claim. There has not been a statement of the case addressing service connection for seminoma. Accordingly, remand is warranted. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the claim for service connection for seminoma. The issue should only be returned to the Board for further appellate consideration if the Veteran perfects the appeal by submitting a timely VA Form 9. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.