Citation Nr: 22018381 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-31 432 DATE: March 29, 2022 ORDER Entitlement to service connection for lymphoma is denied. FINDINGS OF FACT 1. It is not shown that the Veteran was exposed to herbicide agents during his active service. 2. Lymphoma was not present during the Veteran's active service, manifest to a compensable degree within one year of separation from service, and the record does not contain competent evidence indicating that any current lymphoma is causally related to active service or any incident during service. CONCLUSION OF LAW Lymphoma was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1997 through June 1998, February 2002 through January 2003, and February 2003 through February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2021 hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Entitlement to service connection for lymphoma The Veteran contends that he is entitled to service connection for lymphoma because the claimed disability is the result of herbicide agent exposure while stationed at Guantanamo Bay. The Veteran has also asserted that he was exposed to herbicide agents while stationed at Fort McClellan, where the Nuclear, Biological, and Chemical Warfare School is located. In making a decision on appeal, 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); 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 a matter, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If a veteran was exposed to herbicide agents during active service, certain listed diseases shall be service connected. Those diseases include Hodgkin's disease and non-Hodgkin's lymphoma. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The Veteran does not content and the record does not show that the claimed disability manifested during active service or to a compensable degree within one year following separation from service. The service medical records so not show treatment or a diagnosis of lymphoma. The RO undertook development to determine if the Veteran experienced herbicide agent exposure while stationed in Guantanamo Bay, Cuba or Anniston, Alabama. In February 2016 correspondence, it was indicated that the Department of Defense list of locations outside of Vietnam and the Korean DMZ where tactical herbicides were used did not include Guantanamo Bay, Cuba or Anniston, Alabama. "Tactical herbicides were developed for use in the jungles of Vietnam, not for general use in the United States or Guantanamo Bay, Cuba. Since 1957, the Armed forces Pest control Board (now the Armed forces Pest Management Board) routinely provides a list of all approved herbicides and other pesticides used on U.S. Military installations worldwide." A March 2016 formal finding concluded that the record did not have information the Joint Services Records Research Center (JSRRC) required to verify herbicide exposure in Guantanamo Bay or Anniston, Alabama. After a review of the record, the Board finds that the weight of the evidence is against finding that actual exposure to herbicide agents occurred during service. It is a claimant's responsibility to support a claim of entitlement to VA benefits. 38 U.S.C. § 5107(a). The Board has considered the Veteran's report that he was exposed to herbicide agents that were sprayed in the air to keep down pests and also exposed to "controlled burns." However, the evidence of record does not corroborate the Veteran's contentions of the use of herbicide agents at Guantanamo Bay, Cuba or Anniston, Alabama. Inquiries have been conducted into the Veteran's contentions and the Department of Defense determined that tactical herbicides, including Agent Orange, were not used at Guantanamo Bay or in Aniston, Alabama. It was also noted that there was not enough evidence to further research the claim of exposure. The Board finds that evidence to be more persuasive than the Veteran's assertion of actual herbicide agent exposure. Therefore, the Board finds that exposure to herbicides has not been established because the weight of the evidence is against a finding that the Veteran was exposed to herbicide agents during service. Lymphoma, or any condition related to lymphoma, was not noted during service, and the Veteran does not assert an onset during service. There is no evidence that symptoms of the current disability manifested in service or to a compensable degree within a year following separation from service. The Veteran also testified at an August 2021 Board hearing that he did not notice any symptoms until 2014. The Board finds that the weight of the evidence is against a finding that the Veteran was actually exposed to herbicide agents during service. In the absence of any disease or injury during service, the Board finds that a causal relationship between lymphoma and any event, injury, or disease during service has not been established. A July 2015 private medical opinion stated that "military service in this environment with these exposures to include germ warfare school in 1998, has more likely than not exposed him to chemicals and compounds that could certainly be inductive with regard to lymphomatous and lymphoproliferative disorder." However, the evidence of record does not support a finding that the Veteran was exposed to herbicide agents during active duty service. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998); Leshore v. Brown, 8 Vet. App. 409 (1995). The examiner did not state what chemicals or compounds constituted the exposure or how they were related to lymphoma. In addition, the opinion is stated in speculative terms using the phrase "could certainly be." Speculative opinions do not establish relative equipoise. The Board finds that the speculative opinion does not cite any verified exposure during service to any environmental hazard. Therefore, the private medical opinion is of little probative value. There is no other medical evidence of record suggesting that lymphoma is related to service independent of the claimed herbicide agent exposure, and neither the Veteran nor representative has presented, identified, or alluded to the existence of any supporting medical evidence or opinion. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512 (2004); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an event, injury, or disease in service). In reaching the above conclusions, the Board finds that the weight of the evidence is against the claim. The evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claims of entitlement to service connection for lymphoma must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.