Citation Nr: 22011193 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 18-39 880 DATE: February 25, 2022 ORDER Entitlement to service connection for Epstein-Barr virus is denied. Entitlement to service connection for angioimmunoblastic T-cell lymphoma is denied. REMANDED Entitlement to service connection for a brain condition is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that Epstein-Barr virus had an onset during service or is otherwise related to active service. 2. The Veteran's angioimmunoblastic T-cell lymphoma is not secondary to a service-connected disability and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for Epstein-Barr virus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection angioimmunoblastic T-cell lymphoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1951 to December 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a Veterans Law Judge in October 2020; however, prior to the hearing, the Veteran, through her representative at the time, withdrew her hearing request. See October 2020 informal hearing presentation. Service Connection Service connection is 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. 1. Entitlement to service connection for Epstein-Barr virus. 2. Entitlement to service connection for angioimmunoblastic T-cell lymphoma. The Veteran asserts that she was diagnosed with Epstein-Barr virus and/or mononucleosis during service. Additionally, she contends that her angioimmunoblastic T-cell lymphoma is secondary to her Epstein-Barr virus. After a review of the record, the Board concludes that the evidence persuasively weighs against the claims for service connection for Epstein-Barr virus and angioimmunoblastic T-cell lymphoma. Specifically, the Board finds that there is no competent evidence of any in-service injury, event, or disease that may be related to these conditions or that they may be related to service. Private treatment records reveal that the Veteran was diagnosed with Epstein-Barr virus in 2012 and angioimmunoblastic T-cell lymphoma in 2006. The Board notes that the Veteran's service treatment records (STRs) are silent as to any diagnosis, treatment, or complaints of Epstein-Barr virus, mononucleosis, or angioimmunoblastic T-cell lymphoma. Rather, the evidence reveals that she was admitted for three days for nausea, fever, and severe sore throat in February 1955; and she was diagnosed with acute pharyngitis, organism unknown. The physician indicated that there was bilateral, palpable, tender anterior cervical and submaxillary adenopathy and that the pharynx, uvula, and soft palate were diffusely and moderately inflamed; the remainder of the evaluation was within normal limits and the routine laboratory data was not beyond anticipated limits. The Veteran's treatment consisted of isolation, bed rest, hot saline gargles, and penicillin. No diagnosis of Epstein-Barr virus or mononucleosis was noted at that time. The Board acknowledges the Veteran's statements that she was diagnosed with Epstein-Barr and/or mononucleosis in service. However, as previously discussed, the Veteran's contemporaneous STRs do not document an onset of Epstein-Barr virus or mononucleosis during service. For these reasons, the Board finds that the STRs are more probative than the Veteran's more recent assertions as they are contemporaneous to service and for the purpose of identifying a disability at the time. Furthermore, the more probative medical evidence does not document an onset of Epstein-Barr virus until 2012, approximately 57 years after separation from service. The Board notes that while an October 2017 VA treatment record contains references to in-service infectious mononucleosis, such references appear to be based on the Veteran's self-reports and not any medical evidence showing the reported diagnosis and/or treatment. Thus, without evidence of a disease, event, or injury in service, service connection for Epstein-Barr virus is not warranted. Moreover, the Veteran contends that her angioimmunoblastic T-cell lymphoma is secondary to Epstein-Barr virus. However, as the Board has denied the claim for service connection for Epstein-Barr virus herein, the threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability alleged to have caused or aggravated the disability for which service connection is sought is service connected. See 38 C.F.R. § 3.310(a). Accordingly, secondary service connection is not warranted. The Board acknowledges that the Veteran was not afforded VA examinations and medical opinions with respect to these issues but finds that no such examinations were required because the evidence does not indicate that the claimed disabilities, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains: (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 20 Vet. App. at 81. The Board finds that in the instant matter, there is no competent evidence that the Veteran's conditions had onset during service or are otherwise etiologically related to active service. For these reasons, the Board finds that VA examinations and medical opinions are not necessary to decide the claims for service connection for Epstein-Barr virus and/or angioimmunoblastic T-cell lymphoma. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). In sum, the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for Epstein-Barr virus and angioimmunoblastic T-cell lymphoma are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 3. Entitlement to service connection for a brain condition. The Board notes that, according to the United States Court of Appeals for Veterans Claims (the Court), when a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Evidence raised by the record indicates that the Veteran may have symptoms of a brain condition beyond the scope of her claimed brain tumor. Based on the record, the Board will recharacterize the Veteran's claim pursuant to Clemmons as entitlement to service connection for a brain condition, as reflected on the title page. The Veteran STRs reveal that in September 1955 she reported having a three year history of blacking out with amnesia; she was given a provisional diagnosis of syncope, unknown cause. She was hospitalized for the condition from September 1955 to November 18, 1955, at which time the diagnosis was changed to convulsive disorder, manifested by syncopal attacks and amnesia, cause unknown. It was noted that there was a strong possibility that the condition was due to a space taking mass within the skull; however, there was insufficient evidence to warrant a positive diagnosis at the time. A December 1955 clinical board report indicated that she was admitted to the sick list in September 1955 with a diagnosis of syncope, cause undetermined, for observation of fainting spells. Neurological consultation at the time revealed minor neurological changes and an out-patient work-up was initiated. On the date of admission, it was noted that her electroencephalogram was abnormal, indicating a marked generalized cerebral dysfunction of convulsive or other non-specific origin, raising the question of possible mild irritative lesion in or deep to the occipital and post-temporal regions on the right side. The Veteran presented to the civilian neurology consultant who, on review of the history and examination, felt there was good probability of an intracranial lesion. Throughout her hospital stay, the Veteran was on medication to control her seizures. An April 1957 clinical board report noted that the Veteran's attacks of unconsciousness became more frequent during the first six months from separation from service, and gradually decreased in frequency over the next six months, with the last one in November 1956. An electroencephalogram was reported as "generalized moderate abnormal." The clinical board concluded that the Veteran's condition remained static. A November 1958 clinical board report indicated that in addition to seizures, the Veteran had 20 to 30 headaches lasting two to four days. At the time of the evaluation, neurologic and physical examination were within normal limits. The electroencephalogram was considered to show a moderate generalized abnormality. The clinical board concluded that she continued to suffer convulsive disorder, manifested by syncopal attacks and amnesia, cause unknown. A May 1960 clinical board report noted that the Veteran continued to have frequent seizures in spite of large doses of anti-convulsant medication. Physical, neurological, and indicated laboratory examinations were otherwise within normal limits except for an electroencephalogram, which was interpreted as showing a generalized electrical abnormality. The clinical board opined that the Veteran's condition had progressed since the time of her original retirement due to her increased need for anti-convulsant medication as well as increased frequency of her seizures. The Veteran's private medical treatment records indicate that a May 2008 magnetic resonance imaging (MRI) scan revealed no evidence of acute intracranial pathology. A minimal area of old ischemic change at the right posterior frontal vertex was noted. In August 2013, the Veteran was noted to have headaches of an unknown etiology, with some hemorrhagic discharge from the left ear and difficulty with balance. An August 2013 MRI revealed chronic small right frontal and right cerebellar infarcts. The Board notes that the Veteran has not been provided a VA examination with respect to her claim for service connection for a brain condition. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. Here, the Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, remand is warranted to afford the Veteran a VA examination and medical opinion to address the nature and etiology of her brain condition. The matter is REMANDED for the following actions: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the claims file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the claims file. 2. Thereafter, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any identified brain condition. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner is asked to: (a.) Identify and diagnose all current brain disorders found on examination, if any such disorders are present. (b.) Provide an opinion whether each diagnosed brain disorder, if any such disorder is present, had its onset in service, or was caused by or is otherwise related to service. Please explain why or why not. (Continued on the next page) A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. A. Hodzic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.