Citation Nr: 21023043 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 034A DATE: April 20, 2021 ORDER Entitlement to service connection for myasthenia gravis for accrued benefits purposes is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence of record is in relative equipoise as to whether the Veteran’s myasthenia gravis was proximately caused by his service-connected disabilities of non-Hodgkin’s lymphoma and Parkinson’s disease. CONCLUSION OF LAW The criteria for service connection for accrued benefits purposes for myasthenia gravis have been met. 38 U.S.C. §§ 1110, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.1000, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from January 1963 to January 1967, to include service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in December 2019 while the current appeal was pending. The Appellant is the Veteran’s surviving spouse. The Appellant is seeking accrued benefits for the issue on appeal. In August 2018 the Board remanded the Veteran’s claim for further development. Additionally, during the pendency of the appeal, the Veteran was granted service connection for Parkinson’s disease, left upper extremity rigidity/tremor associated with agent orange exposure (50 percent); and, the following injuries on the basis of being secondary to Parkinson’s disease: the loss of use of both feet (100 percent); mild cognitive disorder (70 percent); speech changes (0 percent); stooped posture (40 percent); urinary problems (40 percent); right upper extremity impairment (40 percent); sleep impairment (30 percent); right lower extremity impairment (20 percent); left and right-sided cranial nerve vii impairment (20 percent each side); left lower extremity impairment (20 percent); complete loss of smell (10 percent); constipation due to slowing of GI tract (10 percent); and, erectile dysfunction (0 percent). It is also valuable to note that the Veteran was found to be 100 percent disabled by VA, effective January 16, 2018. In this case, the Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, the Appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Accrued Benefits Claim At the time of his death, the Veteran had a pending claim for service connection for his myasthenia gravis, which he said was incurred in and due to his time in service, specifically, due to his exposure to contaminants in the water supply at Camp Lejeune and his exposure to Agent Orange and subsequent treatment associated with his non-Hodgkin’s lymphoma. The Appellant is seeking accrued benefits. Generally, accrued benefits are benefits that are due but unpaid to which a Veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death, and are payable to the living first person in the following list (in this order): the veteran’s surviving spouse; the veteran’s children; and the veteran’s dependents. 38 U.S.C. § 5121(a)(2)(B); 38 C.F.R. § 3.1000. There is no basis for an accrued benefit claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death, and which were due and unpaid at the time of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon the death of a beneficiary, any accrued benefits are payable to his or her spouse, or to specific others if the spouse is not alive. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For those Veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure.  The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307(a)(6)(ii). Importantly, this list does not include myasthenia gravis. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. Service connection for certain chronic diseases, including myasthenia gravis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service (for Hansen’s disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years). 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to Camp Lejeune contaminated water (CLCW). See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). In order to establish presumptive service connection for a disease associated with exposure to CLCW, the Veteran must show the following: (1) that he or she served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). The enumerated diseases associated with exposure to contaminants in the water supply at Camp Lejeune are as follows: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin’s lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson’s disease, (7) Aplastic anemia and other myelodysplastic syndromes, (8) Bladder cancer. 38 C.F.R. § 3.309(f). Importantly, the list of presumptive diseases associated with CLCW does not include myasthenia gravis. 38 C.F.R. § 3.309(f). However, the Board notes that the Court of Appeals for Veteran’s Claims (Court) in Stefl v. Nicholson, 21 Vet. App. 120 (2007) held that the availability of presumptive service connection for a disability does not preclude a Veteran from establishing service connection with proof of direct causation. Turning to the evidence, it is not in dispute that the Veteran had a current diagnosis of a myasthenia gravis during his lifetime. See University of Maryland Neurology Treatment Record, October 2010. Thus, the first element of a claim for service-connection, a current disability, has been met. The Veteran’s service treatment records (STR’s), however, do not contain complaints, treatment, or diagnosis for myasthenia gravis. The Veteran’s entrance examination does not contain complaints, treatment, or diagnosis of a myasthenia gravis. The Veteran’s post-service medical records do not reveal a diagnosis within applicable time limits for a presumption and they do not show continuous ongoing medical treatment for myasthenia gravis since service. The Veteran was first diagnosed with myasthenia gravis approximately in 2008, which is over 40 years after leaving active service. Thus, the best medical and lay evidence available in this case shows that the onset of myasthenia gravis began no earlier than 40 years after the Veteran left service. Therefore, the Veteran’s myasthenia gravis is not shown to be etiologically related to service on a direct entitlement basis where there is no in-service incurrence of myasthenia gravis and there is insufficient evidence to warrant a finding of presumptive service connection for a chronic disease under 38 C.F.R. § 3.309 and § 3.307, nor is there evidence demonstrating continuity of symptomatology since service, where the first medical evidence of myasthenia gravis appears in 2008, over 40 years after active duty. The next question before the Board is whether the Veteran’s myasthenia gravis was proximately caused by, or proximately aggravated by his service-connected non-Hodgkin’s lymphoma, to include chemotherapy treatment and exposure to Agent Orange. As noted above, the list of presumptive diseases associated with AO found under 38 C.F.R. § 3.309(e) does not include myasthenia gravis. If the Veteran does not have one of the diseases listed at 38 C.F.R. § 3.309(e), then his or her exposure to Agent Orange cannot be presumed. In this regard, exposure to an herbicide agent and claimed disability must therefore be established on a factual, direct incurrence basis. In such cases, the evidence must show three things; 1) competent medical evidence of a current disease process, 2) competent medical evidence of a relationship between the currently diagnosed disease process and exposure to an herbicide while in service, and 3) proof of in-service exposure to an herbicide agent. Specifically, the evidence of record must establish that on the date, time, and location of herbicide spraying, the Veteran was at the given location at the time of spraying. Evidence documenting personal involvement in the use and handling of herbicides will also suffice. The record is silent as to evidence of a relationship between his myasthenia gravis and direct exposure to an herbicide while in service. Importantly, there is no evidence of record showing proof of in-service exposure to an herbicide agent nor has the Veteran made a claim of direct herbicide exposure. Nevertheless, the Veteran may still show that his myasthenia gravis was proximately caused by, or proximately aggravated by his service-connected non-Hodgkin’s lymphoma, including from chemotherapy treatment, which is associated with his exposure to Agent Orange. In this regard, the Veteran was diagnosed for non-Hodgkin’s lymphoma in late 1991. He was treated with chemotherapy and had a complete response in April 1992 and had no evidence of recurrent disease thereafter. See Clinic of the National Cancer Institute Report, January 1998. The Veteran’s myasthenia gravis was first diagnosed when the Veteran initially presented in December 2008 with speech difficulties. See University of Maryland Neurology Clinic Report, October 2010. In September 2015, a private medical provider, Dr. C. N. B., opined the Veteran’s current myasthenia gravis problems are due to his experiences with AO and his chemotherapy he had following military service. The examiner noted the Veteran was exposed to AO in service and AO is known to modulate the immune system. In support, the doctor noted the Veteran was marked sound for service at entry, he is service-connected for AO exposure and non-Hodgkin’s lymphoma (residuals), AO is known to cause immune system problems such as myasthenia gravis (see the Institute of Medicine (IOM) reports on Veterans and Agent Orange), his current symptoms show chronicity of symptomatology, his records do not support another more plausible etiology for his current myasthenia gravis pathology other than his exposure to “super fund water” at Camp Lejeune and the fact that his records do not contain any other risk factors (in or out of service) to explain his problems other than his experiences with chemotherapy. In July 2016, a private medical provider, Dr. M.B., opined that the Veteran was diagnosed with myasthenia gravis in 2006, which is an immune system disease and probably related to lymphoma. Dr. M.B. also noted that the Veteran has had serious medical exposure to toxins while he was in the military service. In June 2019 the VA examiner opined the Veteran’s myasthenia gravis is less likely than not incurred in or caused by service. In support, the examiner noted that myasthenia gravis has not been associated with AO exposure in medical literature and that it has not been associated with treatment for non-Hodgkin’s lymphoma. As to the above three opinions, while each is flawed, the Board finds that the two opinions of the private neurologist’s, taken together, provide reasonable doubt that the Veteran’s AO exposure, exposure to CLCW, non-Hodgkin’s lymphoma and chemotherapy treatment had an adverse effect on the Veteran’s immune system, leading to a subsequent diagnosis of myasthenia gravis, an immune system disease, as reported by the July 2016 private examiner. Thus, the Board finds the two private opinions are the most probative opinions of record as to whether the Veteran’s myasthenia gravis is related to his non-Hodgkin’s lymphoma and related chemotherapy treatment. In reaching this conclusion, the Board has not overlooked the fact that the June 2019 VA examiner opined that the Veteran’s myasthenia gravis was not due to his AO exposure, based on medical literature, and that it has not been associated with treatment for non-Hodgkin’s lymphoma. While the Board agrees myasthenia gravis is not associated with AO exposure, supported by the fact it is not in the presumptive list of diseases in 38 C.F.R. § 3.309(e), the bare conclusion that myasthenia gravis is not related to his chemotherapy treatment for non-Hodgkin’s lymphoma, without supporting data, is inadequate to form the basis of a denial in this claim. Importantly, it does not outweigh the probative value of the two otherwise competent private neurologist opinions in this claim. While the three medical opinions are flawed, the Board has decided not to prolong this appeal by remanding for another medical opinion addressing the etiology of the Veteran’s myasthenia gravis in relation to his treatment for non-Hodgkin’s lymphoma. The Board has also considered whether the Veteran’s myasthenia gravis could be secondary to his Parkinson’s disease or otherwise etiologically related based on the fact his myasthenia gravis onset began with problems related to speech and movement of the mouth. The Veteran was subsequently awarded service connection for speech changes associated with Parkinson’s disease and left and right-sided cranial nerve VII impairment associated with Parkinson’s disease. Nonetheless, in light of the Veteran being service-connected for Parkinson’s disease during the pendency of this appeal, there exists a reasonable and sufficient doubt in this claim, when combined with the discussion above on secondary service connection due to his non-Hodgkin’s lymphoma, as to whether the Veteran’s myasthenia gravis is proximately caused by his multi-faceted and complex service-connected disability picture, to include Parkinson’s disease, non-Hodgkin’s lymphoma, exposure to Agent Orange and contaminated water at Camp Lejeune. Here, again, rather than remand the matter for an etiology opinion on secondary service connection to Parkinson’s disease, the Board finds reasonable doubt has been sufficiently raised such that the evidence for and against the claim is in relative equipoise. The Board also finds a discussion of whether the Veteran’s myasthenia gravis was caused by exposure to contaminants found in the Camp Lejeune water on a direct entitlement basis is moot based on the above. As the evidence is in relative equipoise, the claim must be decided in the Veteran’s favor. Under such circumstances and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that service connection for myasthenia gravis as secondary to his service-connected disabilities is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.