Citation Nr: 23019093 Decision Date: 03/28/23 Archive Date: 03/28/23 DOCKET NO. 13-21 192 DATE: March 28, 2023 ORDER Entitlement to service connection for diffuse large B-cell lymphoma for substitution purposes is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's diffuse large B-cell lymphoma is causally related to exposure to environmental hazards during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for diffuse large B-cell lymphoma for substitution purposes have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1987 to July 1993, including in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran died in March 2012. The appellant is his surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In November 2017, the appellant presented sworn testimony during a videoconference hearing, held by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the VA claims file. In a July 2021 decision, the Board denied entitlement to nonservice-connected death pension benefits from April 2013 to December 2013; granted entitlement to nonservice-connected death pension benefits for January 2014; denied entitlement to nonservice-connected death pension benefits since January 2016; denied entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death; denied entitlement to service connection for diffuse large B-cell lymphoma for substitution purposes; denied entitlement to service connection for diabetes mellitus, type 2, for substitution purposes; denied entitlement to service connection for a bilateral upper extremity disorder, for substitution purposes; denied entitlement to service connection for a bilateral lower extremity disorder, for substitution purposes; and denied entitlement to DIC pursuant to 38 U.S.C. § 1318. The appellant appealed the Board's July 2021 decision to the United States Court of Appeals for Veterans Claims (Court). While the appeal was pending, the appellant and VA's General Counsel filed a Joint Motion for Partial Remand (JMPR). In a July 2022 Order, the Court granted the JMPR, vacating and remanding that part of the July 2021 Board decision which denied (1) service connection for diffuse large B-cell lymphoma for substitution purposes, and (2) DIC based on service connection for the cause of the Veteran's death. The Court dismissed the appeal of the remaining issues addressed by the Board in its July 2021 decision. In October 2022, the Board remanded the above captioned claim, as well as a claim for DIC based on service connection for the cause of the Veteran's death, for further evidentiary development, to include obtaining an addendum medical opinion. While the matter was in remand status, in a January 2023 rating decision, the RO, inter alia, granted service connection for the cause of the Veteran's death. That award constitutes a full grant of the disability sought, and that appeal has been resolved. Entitlement to service connection for diffuse large B-cell lymphoma for substitution purposes is granted. The appellant contends that the Veteran's diffuse large B-cell lymphoma was due to his exposure to environmental hazards in Southwest Asia. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, certain chronic diseases, including malignant tumors, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Specific to Persian Gulf War service, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms to include muscle and joint pain, and signs and symptoms involving the respiratory system. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia theater of military operations (SWA) during the Persian Gulf War, or to a degree of 10 percent or more disabling not later than December 31, 2021; and must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Effective August 10, 2022, pursuant to the enactment the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), VA will presume that a veteran was exposed to burn pit and other environmental hazards if on or after August 2, 1990, the veteran performed active military, naval, air, or space service while assigned to a duty station in, including the air space above Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, or The United Arab Emirates (UAE). 38 U.S.C. § 1119(c)(1)(A). The PACT Act lists several diseases or illnesses that can be considered presumptively service-connected based on such exposure to burn pits or other toxic substances, to include lymphoma of any type. See 38 U.S.C. § 1120; see also Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, H.R. 3967 117th Cong. (2021-2022). Despite the presumptive regulations, service connection may be established with evidence of actual causation. 38 C.F.R. § 3.309(e); cf. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Board finds that entitlement to service connection for diffuse large B-cell lymphoma is warranted on a direct basis. The post-service record on appeal includes VA and private treatment records showing an April 2011 diagnosis of diffuse large B-cell lymphoma. None of this evidence contains information as to the etiology of the condition. The Board finds that the evidence is at least in equipoise as to whether the Veteran's diffuse large B-cell lymphoma was causally related to exposure to environmental hazards during active service. During a 1997 Persian Gulf physical examination, the Veteran reported that while he was stationed in the Persian Gulf, he was exposed to gasoline and diesel fuels, as well as burning feces. He reported a skin rash and feeling extremely fatigued after discharge. At the November 2017 Board hearing, the appellant testified that the Veteran was exposed to burn pits during his service in Southwest Asia and that he developed a skin rash and fatigue. See November 2017 Transcript of Hearing, pastes 3-4. In September 2019, the RO obtained a medical opinion in regard to service connection for the Veteran's cause of death. The examiner found that it was less likely than not that the Veteran's death was incurred in or caused by an in-service injury, event, or illness. The examiner explained that Institute of Medicine, National Academy of Sciences, and VA research did not support a nexus between the Veteran's service from 1987 to 1993 and his diagnosis of diffuse large B-cell lymphoma in April 2011 based on the time frame of the diagnosis. Another medical opinion was obtained in February 2021. The examiner opined that it was not at least as likely that the Veteran's lymphoma was related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. An addendum medical opinion was obtained in November 2022. The examiner opined that the Veteran's diffuse large B-cell lymphoma or its symptoms were not a medically unexplained chronic multi-symptom illness related to the Veteran's Gulf War service, as the etiology and pathophysiology of the Veteran's lymphoma were not inconclusive. The examiner also opined the following in pertinent part: Therefore, if the Veteran is a Gulf War Veteran and the VA has conceded that he was exposed to burn pit/other toxic exposure during service, "IT IS AT LEAST AS LIKELY AS NOT," that the DLBCL [diffuse large B-cell lymphoma] (that led to his death) was incurred in or caused by burn pit/other toxic exposure during service. In support of the claim, the appellant's attorney submitted a brief in January 2023 citing a February 2008 Department of Defense Enhanced Particulate Matter Surveillance Program (EPMSP) Final Report. It was noted that the study was conducted to provide information on the chemical and physical properties of dust collected at deployment locations in the Southwest Asia region. The report found that exposures in the region may have exceeded military/national exposure guidelines. The appellant's attorney also indicated that in 2010, the National Research Council (NRC) of the National Academies of Sciences, Engineering, and Medicine (NASEM) independently reviewed the EPMSP's final report. It was noted that despite some limitations, the NRC committee found that the EPMSP results clearly documented that servicemembers deployed in the Middle East "are exposed to high concentrations of PM [particulate matter] and that the particle composition varies considerably over time and space." The NRC committee further determined that "it is indeed plausible that exposure to ambient pollution in the Middle East theater is associated with adverse health outcomes." It was noted that the health outcomes may occur both during service (acute) as well as manifest years after exposure (chronic). See Department of Defense Enhanced Particulate Matter Surveillance Program (EPMSP) Final Report (2008), https://apps.dtic.mil/sti/pdfs/ADA605600.pdf (last accessed March 26, 2023); National Research Council, Review of the Department of Defense Enhanced Particulate Matter Surveillance Program Report (2010), https://doi.org/10.17226/12911 (last accessed March 26, 2023); see also https://www.regulations.gov/document/VA-2021-VBA-0015-0001 (last accessed March 26, 2023).. The Board finds the examiners' opinions of low probative value. In that regard, the September 2019 examiner failed to discuss the specific circumstances of the Veteran's case and failed to consider that the date of diagnosis was not the date the condition developed. The February 2021 examiner failed to address the pathophysiology of the Veteran's condition. To the extent that the November 2022 examiner appears to have confounded her discussion of etiology and pathophysiology, the Board also finds that opinion to be of low probative weight. (Continued on the next page) ? The Board finds that the study, discussed above, together with the lay and clinical evidence of record, renders the record in approximate equipoise as to whether service connection for diffuse large B-cell lymphoma on a direct basis is warranted. The recently-enacted PACT Act adding diffuse large B-cell lymphoma to the list of diseases presumed to be associated with exposure to burn pits or other toxic substances in Southwest Asia, as well as the positive opinion, strengthens the Board's conclusion that service connection for lymphoma is warranted on a direct basis. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his or her favor, but only an approximate balance of the positive and negative evidence. In other words, the evidence must be persuasively against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Given the evidence set forth above, such a conclusion cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for diffuse large B-cell lymphoma on a direct basis. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.