Citation Nr: 22019877 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 12-32 167 DATE: April 3, 2022 REMANDED Service connection for Hodgkin's lymphoma is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from September 1980 to June 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the RO in Columbia, South Carolina, which, in pertinent part, denied the service connection issue on appeal. The instant matter was first before the Board in May 2017. At that time, the Board sought a Veterans Health Administration (VHA) opinion, which was subsequently received in August 2017. Per the August 2017 VHA opinion, the oncologist indicated that woodworking showed the most consistent link to the risk of Hodgkin's lymphoma, although not all studies showed this association. Upon a copy of the VHA being sent to the Veteran, the Veteran asserted a new theory of service connection that he had engaged in woodworking as part of service responsibilities as a cargo specialist. In a December 2017 Remand, the Board directed that a woodworking questionnaire be sent to the Veteran to help the Board determine whether an addendum to the VHA opinion was necessary. Unfortunately, the Veteran failed to respond to the questionnaire that had been sent by the Agency of Original Jurisdiction (AOJ) in January 2018. Subsequently, in July 2019, the Board issued a decision denying service connection for lymphoma, to include Hodgkin's and non-Hodgkin's lymphoma. In its decision, based upon the findings of the oncologist in August 2017, the Board specifically found that the Veteran had a current diagnosis of Hodgkin's lymphoma, and that any previous notations of non-Hodgkin's lymphoma constituted a misdiagnosis. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated June 2020, the Court granted a Joint Motion for Remand (JMR), which remanded the issue of service connection for lymphoma, to include Hodgkin's and non-Hodgkin's lymphoma, back to the Board for development consistent with the JMR. Upon the matter being returned to the Board, in an October 2020 Remand, the Board noted that, while the JMR remanded the issue of service connection for lymphoma, to include Hodgkin's and non-Hodgkin's lymphoma, the JMR did not indicate any disagreement with the Board's prior finding that the correct lymphoma diagnosis for the Veteran was Hodgkin's lymphoma, and not non-Hodgkin's lymphoma. As such, the Board reframed the issue on appeal to correctly reflect that the issue before the Board is service connection for Hodgkin's lymphoma. As such, the additional development being ordered at that time was specifically structured towards determining if service connection for Hodgkin's lymphoma is warranted. Per the JMR, the parties agreed that the Board failed to provide adequate reasons and basis for its credibility findings. Specifically, the Board's findings that the timing of the Veteran's assertions of being exposed to chemical soaked wood, and the Veteran's failure to complete the January 2018 woodworking questionnaire, weighed against the Veteran's credibility. Further, the parties agreed that the Board failed to provide adequate reasons and basis for its finding that the August 2017 VHA provided sufficient support for its finding that Hodgkin's lymphoma was, at the very least, a chronic multi-symptom illness of partially understood etiology and pathophysiology. In compliance with the JMR, the Board remanded the matter for additional development. In the October 2020 Remand, the Board provided a number of detailed questions for an oncologist to address. While most of these questions were adequately answered in detail, as will be discussed below, remand is necessary for clarification by the oncologist on a few points. The Board notes that, while on remand, the Veteran submitted private treatment records from September 2020. Per these private treatment records, in preparation of a kidney transplant, tests were completed to determine whether the Veteran's previously treated "non-Hodgkin's lymphoma" had recurred. It was found that "non-Hodgkin's lymphoma" was not present, and that the Veteran was clear to undergo a kidney transplant. Upon reviewing these records, the Board does not now find that the Veteran did, in fact, have a prior diagnosis of non-Hodgkin's lymphoma. Rather, for all the reasons discussed in the July 2019 Board decision, the Board merely finds this to be a continuation of the misdiagnosis of non Hodgkin's lymphoma that has persisted for years. As discussed above, VA sought a VHA opinion from an oncologist, which was received in August 2017. After reviewing the evidence of record and the medical literature, the oncologist opined that the Veteran only had Hodgkin's lymphoma. The oncologist explained that, per the evidence of record, in May 2006 the Veteran was diagnosed with and treated for Hodgkin's lymphoma. Specifically, a left neck excision showed Hodgkin's nodular sclerostin type. The VHA oncologist noted that the Veteran was treated by Dr. OS, a private oncologist, and that the Veteran subsequently went into remission. The oncologist then opined that the evidence of record did not support a diagnosis of non Hodgkin's lymphoma. Concerning the various diagnoses of non Hodgkin's lymphoma found throughout the record, the VHA oncologist surmised that the "discrepancy in the medical records on [the Veteran's] problem list may be due to either the Veteran's self report or non oncologists choosing an inaccurate diagnosis code for his problem list." Further, the VHA oncologist explained that there was no pathologic evidence or notes from an oncologist reporting non Hodgkin's lymphoma, nor was there any documentation of treatment and/or monitoring for non Hodgkin's lymphoma. For these reasons, the Board found that the weight of the evidence demonstrated that the Veteran only has a current diagnosis of Hodgkin's lymphoma. The Board then noted that, in a November 2017 brief, the Veteran's representative disputed the VHA oncologist's finding of no non Hodgkin's lymphoma. In support of this argument, the representative advanced that both VA and private oncologists had diagnosed non Hodgkin's lymphoma. The Board found this assertion to be incorrect. While VA had received treatment records from numerous VA and private physicians, as noted in the August 2017 VHA opinion, the only oncologist from which the Veteran had received treatment up to that point was Dr. OS. Review of all the evidence of record reflected that Dr. OS never diagnosed non Hodgkin's lymphoma. Rather, all diagnoses of non Hodgkin's lymphoma found within the record were rendered by physicians who were not oncologists. As such, the Board found the representative's argument that the VHA oncologist was incorrect in not diagnosing non Hodgkin's lymphoma to be of no merit. While the newly received September 2020 private treatment records do appear to be from a medical practice specializing in oncology, the Board does not find this to outweigh the findings of the VHA oncologist in August 2017. Per a September 2020 private treatment record, the Veteran was referred to this private oncology practice by VA to clear the Veteran for a possible kidney transplant. Per the above, the Veteran's VA treatment records are rife with non Hodgkin's lymphoma diagnoses which, for the reasons discussed above, have been found to be incorrect because the only diagnosis from an oncologist in May 2006 was Hodgkin's lymphoma. The September 2020 private treatment records, dated many years after the Veteran's treatment for Hodgkin's lymphoma, and which are based upon inaccurate VA treatment records, do not outweigh the VHA oncologist's findings from August 2017. For the above reasons, the Board continues to find that the issue on appeal is entitlement to service connection for Hodgkin's lymphoma. The Veteran testified from Columbia, South Carolina, at a February 2017 Board videoconference hearing before the undersigned Veterans Law Judge (VLJ), who was seated in Washington, DC. The hearing transcript has been associated with the record. Service Connection for Hodgkin's Lymphoma is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the October 2020 Remand, an oncologist was directed to first opine as to whether Hodgkin's lymphoma was a medically unexplained chronic multi symptom illness, pursuant to 38 C.F.R. § 3.317. If the oncologist found that Hodgkin's lymphoma was not a medically unexplained chronic multi symptom illness, the oncologist was to opine as to whether Hodgkin's lymphoma is 1) a disease with a clear and specific etiology, pathophysiology, and diagnosis; or 2) a chronic multi symptom illness of partially understood etiology and pathophysiology. If the oncologist assessed that the diagnosed Hodgkin's lymphoma is a disease with a clear and specific etiology, pathophysiology, and diagnosis, then the oncologist was to address the opinion of the VA examiner in April 2011 that Hodgkin's lymphoma is a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology. If the oncologist found that Hodgkin's lymphoma is a chronic multi-symptom illness of partially understood etiology and pathophysiology, then the oncologist was to discuss the specific factors in this Veteran's case that support a finding that the Veteran's Hodgkin's lymphoma etiology and pathophysiology is partially understood, rather than medically unexplained. In a January 2022 opinion, an oncologist explicitly disagreed with the April 2011 VA examiner who found that Hodgkin's lymphoma was a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. Per a separate January 2022 opinion, the oncologist also opined that Hodgkin's lymphoma is not a chronic multi symptom illness of partially understood etiology and pathophysiology. In rendering both opinions, the oncologist discussed the pathogenesis of classic Hodgkin's lymphoma. As the oncologist made specific findings that Hodgkin's lymphoma is neither a medically unexplained chronic multi symptom illness, nor a chronic multi symptom illness of partially understood etiology and pathophysiology, presumably the oncologist found Hodgkin's lymphoma to be a disease with a clear and specific etiology, pathophysiology, and diagnosis. Unfortunately, it does not appear that the oncologist recorded that specific finding. Further, when discussing the Hodgkin's disease, the oncologist specifically stated that "the exact etiology of Hodgkin's lymphoma is unknown" and that "it is an immune process that is usually not chronic." Considering these statements, especially the note that the exact etiology of Hodgkin's lymphoma is unknown, the Board finds to be necessary a remand for a clarifying opinion concerning whether Hodgkin's lymphoma is a disease with a clear and specific etiology, pathophysiology, and diagnosis. Further, per the October 2020 remand, if the VA examiner assessed the Hodgkin's lymphoma to either be a disease with a clear and specific etiology, pathophysiology, and diagnosis, or a chronic multi-symptom illness of partially understood etiology and pathophysiology, the oncologist was to opine as to whether the Hodgkin's lymphoma was due to exposure to diesel fumes and/or other environmental hazards during the Veteran's 12 years of work as an in-service cargo specialist, exposure to one or more environmental hazards while the Veteran was deployed to Southwest Asia during the Persian Gulf War, or to purported in service woodworking and/or exposure to chemically soaked wood while working as an in-service cargo specialist. In a January 2022 opinion, the oncologist specifically opined that it was less likely than not that either exposure to diesel fumes and/or other environmental hazards while working as an in-service cargo specialist, or exposure to one or more environmental hazards while the Veteran was deployed to Southwest Asia during the Persian Gulf War, caused the Hodgkin's lymphoma. The oncologist specifically explained that the peer reviewed medical literature did not support such a link. The Board finds these opinions to be adequate. However, the oncologist did not specifically state that it was less likely than not that the Hodgkin's lymphoma was caused by the purported in service woodworking and/or exposure to chemically soaked wood while working as an in service cargo specialist. Rather, there is merely a notation in the opinion that one study from 1993 found no association between Hodgkin's lymphoma and woodworking; however, per the August 2017 VHA opinion report, that oncologist cited two medical journal articles, one from 1984 and one from 1999, that appear to find a link between an increased risk of Hodgkin's lymphoma and woodworking. Further, in the separate January 2022 opinions in which the oncologist found that Hodgkin's lymphoma is neither a medically unexplained chronic multi symptom illness, nor a chronic multi symptom illness of partially understood etiology and pathophysiology, the oncologist discussed a Canadian study from 2013 that found an association between Hodgkin's lymphoma and fungicides and insecticides. The Board notes that wood is often treated with fungicides and insecticides. Based on the above, the Board finds that remand for an addendum opinion on the question of whether the Veteran's purported in service woodworking and/or exposure to chemically soaked wood while working as an in-service cargo specialist is related to the currently diagnosed Hodgkin's lymphoma. The matter is REMANDED for the following action: 1. Return the January 2022 opinion reports to the oncologist who rendered the opinions for an addendum opinion. If the original oncologist is unavailable, a new oncologist may be assigned to address the requested opinions. The relevant documents in the record should be made available to the oncologist, who should indicate on the examination report that he/she has reviewed the documents. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The oncologist should provide the following opinions: A) The oncologist should specifically opine as to whether Hodgkin's lymphoma is a disease with a clear and specific etiology, pathophysiology, and diagnosis. If the oncologist finds that Hodgkin's lymphoma is a disease with a clear and specific etiology, pathophysiology, and diagnosis, the oncologist should clarify the statement from the January 2022 opinion that "the exact etiology of Hodgkin's lymphoma is unknown, however it is an immune process that is usually not chronic." B) If the oncologist finds that Hodgkin's lymphoma is not a disease with a clear and specific etiology, pathophysiology, and diagnosis, the oncologist should opine as to whether the Hodgkin's lymphoma is 1) is a medically unexplained chronic multi-symptom illness; or 2) a chronic multi-symptom illness of partially understood etiology and pathophysiology. For purposes of this opinion, a medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. If the oncologist finds that Hodgkin's lymphoma is a chronic multi-symptom illness of partially understood etiology and pathophysiology, then the oncologist is to discuss the specific factors in this Veteran's case that support a finding that the Veteran's Hodgkin's lymphoma etiology and pathophysiology is partially understood, rather than medically unexplained. C) After reviewing the Veteran's April 2021 answers to the Board's woodworking questionnaire, provided at the time of an April 2021 VA examination, opine as to whether it is as likely as not (50 percent or higher degree of probability) that the currently diagnosed Hodgkin's lymphoma was caused by in-service woodworking and/or exposure to chemically soaked wood, as described by the Veteran in the woodworking questionnaire, while working as an in-service cargo specialist. (Continued on the next page) In rendering this opinion, the oncologist should specifically address the two medical journal articles, one from 1984 and one from 1999, cited by the VHA oncologist in August 2017, that appear to find a link between an increased risk of Hodgkin's lymphoma and woodworking. Further, the oncologist should address the Canadian study from 2013 that found an association between Hodgkin's lymphoma and fungicides and insecticides, to include the question of whether such fungicides and insecticides may have been in any wood used by the Veteran during service. 2. Then, readjudicate the issue of service connection for Hodgkin's lymphoma. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.