Citation Nr: 25004563 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 18-14 359 DATE: April 3, 2025 ORDER Entitlement to service connection for non-Hodgkin's lymphoma, on a direct basis, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's non-Hodgkin's lymphoma was incurred during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for non-Hodgkin's lymphoma, on a direct basis, have been met. 38 U.S.C. §§ 101, 1110; 38 C.F.R. §§ 3.1, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to October 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, determined that new and material evidence had not been received to reopen a previously denied claim of service connection for lymphoma cancer. The Veteran filed a notice of disagreement (NOD) in December 2017 and a statement of the case (SOC) was issued in February 2018. He perfected a timely appeal in March 2018. In December 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2022 decision, the Board, inter alia, reopened and remanded the claim of entitlement to service connection for lymphoma cancer for additional evidentiary development. In a June 2023 decision, the Board, inter alia, denied service connection for lymphoma cancer. The Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court). In a June 2024 memorandum decision, the Court vacated and remanded the portion of the Board's June 2023 decision which denied service connection for lymphoma cancer. The Board notes that the Veteran was represented at the Court by Michael R. Viterna. Following the June 2024 memorandum decision, the firm filed an application for attorneys' fees and expenses in the amount of $8,147.75. VA's General Counsel did not contest the reasonableness of the claimed fees, for the sole purpose of avoiding further litigation and the costs related thereto. In October 2024, the Court granted the application for the agreed amount of $8,147.75. Michael R. Viterna has apparently elected not to continue representing the Veteran before VA. Thus, he remains represented by the agent listed above. In a January 2025 Board decision, the claim was remanded for further evidentiary development. While the matter was in remand status, in a February 2025 rating decision, the RO granted service connection for non-Hodgkin's lymphoma pursuant to the PACT Act, and assigned an initial noncompensable disability rating, effective August 10, 2022. A supplemental statement of the case (SSOC) was issued in February 2025 as to the issue of entitlement to service connection for non-Hodgkin's lymphoma on a basis other than the PACT Act. In a March 2025 letter, the Board notified the Veteran and his representative, Larry B. Simmons, that his appeal had been returned to the Board. Neither the Veteran nor Mr. Simmons has responded. In fact, the Board's review of the record indicates that Mr. Simmons has provided no evidence or argument in support of the issue on appeal following the June 2024 memorandum decision. 1. Entitlement to service connection for non-Hodgkin's lymphoma, on a direct basis. As set forth above, in a February 2025 rating decision, the RO granted service connection for non-Hodgkin's lymphoma, effective August 10, 2022, the date of the PACT Act. Although service connection for non-Hodgkin's lymphoma has been granted, the U.S. Court of Appeals for Veterans Claims (Court) has held that an award of service connection for a disability under the PACT Act does not resolve a pending appeal of service connection for that same disability on a basis other than the PACT Act. Johnson v. Collins, No. 23-1005, 2025 U.S. App. Vet. Claims LEXIS 409 (March 31, 2025); but see Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The enumerated diseases include malignant tumors, such as lymphoma. Here, the Veteran contends that his lymphoma cancer is related to exposures aboard the U.S.S. Truckee, to include lead paint, jet fuel, Agent Orange, and fire suppressant foam. See, e.g., the Board hearing transcript December 2021. For the following reasons, entitlement to service connection for non-Hodgkin's lymphoma, on a direct basis, is warranted. With respect to the first element necessary to establish service connection, a current disability, the evidence of record demonstrates that the Veteran is diagnosed with non-Hodgkin's lymphoma. See the VA examination report dated December 2022. Accordingly, the first element of service connection has been met. As to the second element necessary to establish service connection, an in-service disease or injury, the Veteran's service personnel records show that he served aboard the U.S.S. Truckee from May 1968 to October 1969. His military occupational specialty (MOS) was boatswain's mate. The Veteran has not contended, nor does the record show, that his non-Hodgkin's lymphoma manifested during his active duty service. Indeed, his STRs show no treatment for, or diagnosis of non-Hodgkin's lymphoma. Rather, the Veteran argues that he sustained multiple environmental exposures while aboard the U.S.S. Truckee, to include chemicals and solvents, lead paint, asbestos, sand blasting from other ships which were dry docked nearby, JP-4 and JP-5 jet fuel, and black oil, as well as cargo which he believes contained remnants of Agent Orange. See the statements of the Veteran dated November 2017 and July 2021. The Veteran has additionally contended that he was, at times, exposed to a foam in the performance of MOS as Boatswain's Mate aboard the U.S.S. Truckee. See, e.g., the Veteran's statement dated July 2021; see also the Board hearing transcript dated December 2021. In a November 2023 statement, the Veteran clarified that this "white foam" was firefighter foam. He explained that, while stationed aboard the U.S.S. Truckee, he was tasked with refueling other ships. See the Veteran's statement dated November 2023. He indicated that the fuel would frequently spill, and this fire suppressant foam would be sprayed on the spill. Id. With regard to the Veteran's contentions of herbicide exposure, VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). These diseases include non-Hodgkin's lymphoma. However, the evidence fails to support a finding that the Veteran was exposed to herbicide agents during his active duty service. First, the record shows that the Veteran did not serve in any of the specifically enumerated locations which would entitle him to a presumption of exposure. With respect to actual exposure, the Veteran's service treatment and personnel records contain no indication of exposure. The Board has carefully considered the Veteran's statements to the effect that he believes he was exposed to Agent Orange while serving aboard the U.S.S. Truckee. He recalls refueling and unloading cargo from ships which he believes had been in Vietnam. See the Board hearing transcript dated December 2021. As a result, he believes he was exposed to Agent Orange on a second-hand basis by coming into contact with ships or equipment which had Agent Orange exposure. Id. The Board finds, however, that the Veteran's personal observations and beliefs in this case are not competent to establish that any substance to which he recalls being exposed was an herbicide agent such as herbicide agents. The Veteran is not shown to have the training or expertise necessary to identify herbicide agents by sight. Rather, it is his assumption that he was exposed to herbicides because he handled cargo which he believed contained Agent Orange residue. After considering the evidence of record, the Board finds that the Veteran's statements are completely speculative and do not establish actual exposure to herbicide agents. To this end, a toxic exposure risk activity (TERA) memorandum completed by VA in February 2023 indicated that the Veteran did not qualify for a presumption of exposure to herbicide agents during active duty; however, there was evidence of other potential deployment related exposure in the record, which included chemicals and solvents, lead paint, asbestos, sand blasting from other ships which were dry docked nearby, and JP-4 and JP-5 jet fuel. Additionally, a more recent VA memorandum concerning the Veteran's exposure to a toxic exposure risk activity (TERA), conceded his exposure to fuel products (including diesel, JP-8 and JP-4), industrial solvents in cleaning, paint fumes, amine, carbon monoxide, monoethanolamide, and asbestos. See the VA TERA memorandum dated April 2024. Accordingly, in-service injury on that basis has been demonstrated by the record. With regard to the question of nexus, the Veteran was afforded a VA examination in December 2022, at which time the examiner noted a 2021 diagnosis of non-Hodgkin's lymphoma. As to the question of nexus, the examiner opined, in pertinent part, The Veteran ha[s] a diagnosis of lymphoma cancer that is at least as likely as not incurred in or caused by military environmental exposures aboard the USS Truckee, to include lead paint, jet fuel, and remnants of Agent Orange during service. Veteran has a diagnosis noted of Non-Hodgkin's Lymphoma on exam in 2/22. He served in the Vietnam [W]ar from [February 1968 to October 1969]. He reports being exposed to Agent [O]range, lead paint, asbestos, and sand blasting in service. According to the US [D]epartment of Veteran [A]ffairs, non-Hodgkin's lymphoma is a presumptive disease of Vietnam veterans exposed to Agent Orange . . . It is known that exposure to Agent [O]range, asbestos, and lead paint can cause cancer. A nexus has been established. A VA medical opinion was obtained in March 2023. After reviewing the record, the examiner rendered a negative etiological opinion. The examiner opined, in pertinent part, The Veteran's stage II, grade 3 follicular lymphoma/non-Hodgkin's lymphoma is not the result of exposure to multiple military environmental exposures, to include chemicals and solvents, lead paint, asbestos, sand blasting from other ships which were dry docked nearby, and JP-4 and JP-5 jet fuel. These exposures have not been implicated in the development of NHL [non-Hodgkin's lymphoma]. Follicular lymphoma is the second most common NHL variant and has been associated with pesticides and herbicides but not the types of exposures claimed by the Veteran. Therefore, it is less likely than not that the Veteran's non-Hodgkin's lymphoma is due to or incurred in service, including the exposures claimed above and those inherent in the Veteran's MOS. The Veteran's TERA was negative for question-one exposures, including herbicides. The Veteran's MOS is conceded as are the potential exposures claimed by the Veteran. They have not been associated with the development of non-Hodgkin's lymphoma. Pursuant to the January 2025 Board Remand, a VA medical opinion was obtained in January 2025 at which time the examiner opined, that the Veteran's claimed non-Hodgkin's lymphoma was less likely than not (likelihood is less than approximately balanced or nearly equal) caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The examiner explained, "NHL may be associated with various factors, including infections, environmental factors, immunodeficiency states, and chronic inflammation. Various infectious agents have been attributed to different types of NHL." The examiner cited medical literature and the concluded, "[e]vidence based literature has not shown associations between the Veteran's conceded toxic exposures and NHL. Therefore, it is less likely than not that the claimed condition was caused by the combined and synergistic effects of the Veteran's TERA during service." A VA addendum opinion was obtained in February 2025. The examiner clarified, "[t]he Veteran's reports about his symptoms align with current knowledge on the development and diagnosis of lymphoma." The examiner continued, In consideration of the Veteran's personal statement endorsing exposure to fire suppressant foam and the conceded solvent exposure during military service: Studies have reported links between aqueous film forming foam and other chemicals known as perfluorinated alkylated substances (PFAS) commonly used in non-stick and stain-resistant consumer products, food packaging, fire-fighting foam, and industrial processes with cancers such as mesothelioma, prostate, testicular, and non-Hodgkin's lymphoma. Therefore, it is more likely than not that the claimed condition was caused by the combined and synergistic effects of the Veteran's TERA during military service. Mazumder NU, Hossain MT, Jahura FT, Girase A, Hall AS, Lu J, Ormond RB. Firefighters' exposure to per-and polyfluoroalkyl substances (PFAS) as an occupational hazard: A review. Front Mater. 2023;10:10.3389/fmats.2023.1143411. doi: 10.3389/fmats.2023.1143411. Epub 2023 Mar 23. PMID: 38074949; PMCID: PMC10698640 Accordingly, based upon the conclusions of the VA examiner, as expressed in the February 2025 addendum opinion and the chemical exposures conceded in the February 2023 and April 2024 VA TERA memoranda, the AOJ awarded service connection for non-Hodgkin's lymphoma in a rating decision dated February 2025, which assigned a noncompensable disability rating, effective from August 10, 2022, pursuant to the PACT Act. The Board, however, notes that the chemical exposure conceded by the AOJ in the award of service connection for non-Hodgkin's lymphoma, namely, exposure to fire suppressant foam, was not presumptively established pursuant to the PACT Act. See 38 U.S.C. § 1116; Honoring our PACT Act of 2022, Pub. L. No. 117-168, § 407, 136 Stat. 1759, 1785 (2022); cf. Combee, supra. Rather, the Veteran's exposure to these chemicals was established on a facts-found basis. See the VA TERA memoranda dated February 2023 and April 2024. Given the February 2025 positive VA addendum opinion and the chemical exposures conceded by the AOJ, the Board finds that the evidence is at least in equipoise as to whether entitlement to service connection for non-Hodgkin's lymphoma, on a direct basis, is warranted. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for non-Hodgkin's lymphoma on a direct basis. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.