Citation Nr: 0844849 Decision Date: 12/30/08 Archive Date: 01/07/09 DOCKET NO. 07-14 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for Non-Hodgkin's Lymphoma (NHL). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to August 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2007, the veteran testified during a personal hearing at the RO and, in October 2008, the veteran, sitting at the RO, testified at a Travel Board hearing before the undersigned. Transcripts of these hearings are associated with the claims file. FINDING OF FACT The veteran's NHL is causally related to benzene, trichloroethylene (TCE), and other chemical exposures during his period of active service. CONCLUSION OF LAW The veteran's NHL was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In light of the favorable decision as it relates to the issue of the grant of service connection for NHL, no further discussion of VCAA is necessary at this point. Any notice deficiency constitutes harmless error. Bernard v. Brown, 4 Vet. App. 384, 394 (1993)), and if the veteran so chooses, he will have an opportunity to initiate the appellate process again should he disagree with the disability rating or effective date assigned to the award. II. Service Connection for Non-Hodgkin's Lymphoma The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). NHL has been determined to be one of the diseases that are presumed to be related to exposure to certain herbicides for those veteran's that served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309, 3.313. There is no evidence that veteran served in Vietnam at any time. Accordingly, there is no basis to consider his claim for service connection on a presumptive basis for service in Vietnam. The veteran's service medical records are negative for any indication of NHL during service. Further, there is no evidence that the veteran exhibited symptomatology or manifestations of NHL during the one year period after service. The first evidence of record for the veteran's NHL was in July 2002, some 33 years after service. Thus there is no basis for the grant of service connection on a presumptive basis for a chronic disease. Likewise, as noted above, there is no indication of NHL during service. There is no objective evidence of record to show a continuity of symptomatology after service as there is no medical evidence that reflects that the veteran's NHL was first manifest at any time prior to its diagnosis in July 2002. Therefore, there is no basis to establish service connection under Savage v. Gober, 10 Vet. App. 488 (1997) and 38 C.F.R. § 3.303(b) (finding service connection claim based on continuity of symptomatology applies if condition is observed during service or applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates present condition to that symptomatology). Thus, the only avenue for service connection remaining is for a disability that is initially diagnosed after service. 38 C.F.R. § 3.303(d). The veteran contends that his NHL is due to his exposure to benzene, TCE and/or other chemicals in service. Specifically, he claims that he was exposed to these chemicals when he cleaned engines of Armored Personal Carriers (APC), when he fueled the APCs (i.e. exposure to diesel fuel spills), and via the drinking water when he was stationed at Fort Ord, Fort Dix, and Baumnolder. The veteran stated that he wore no protective gear. (See Travel Board Hearing Transcript dated in October 2008). Personnel records reflect that the veteran was a light truck driver/mechanic from April 1968 to June 1969. It appears that he performed this MOS while assigned to the HHC 2nd BDE, 8th Infantry Division. He was also stationed in Baumnolder, Germany from January 1968 to August 1969. The veteran was also stationed at Fort Ord, California; Fort Bragg, North Carolina; and Fort Dix, New Jersey. He has provided several statements detailing his exposure to various carcinogens. VA has been unable to verify the exposures as claimed by the veteran. However, the Board notes that prior to the creation of the Occupational Safety and Health Administration (OSHA) in 1971, the Department of Defense did not keep detailed occupational exposure records. Since the veteran's service, and claimed exposure, occurred prior to the establishment of OSHA, no individual exposure/health records would have been maintained. Thus, it would be impossible for the Office of the Surgeon General, or any other federal department, to offer any quantitive measure or estimate of the veteran's alleged exposure to benzene or other carcinogens. 2007 WL 3137719; 2004 WL 2024102. The veteran, however, is competent to provide such evidence of claimed exposure. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) (Court found that the veteran was competent to testify as to the facts of his asbestos exposure). He also provided a buddy statement from J.M. that stated he was part of the APC team in Baumnolder, Germany from January 1968 to August 1969 and that they were exposed to vapors during the fueling process and a spill when a valve of a diesel tanker was left open. Further, the veteran submitted numerous research studies and articles in support of his exposure and causation. With regard, to exposure the veteran submitted an NPL site narrative for Fort Ord. The article noted that Fort Ord had vehicle maintenance areas and that chemicals and hazardous wastes were managed and disposed there. Tests conducted by the Army in 1986 revealed TCE in the soil and groundwater. (See NPL Site Narrative for Fort Ord dated Feb. 21, 1990). An article titled, "The Mess We've Left Behind," noted that the Department of Defense was not in compliance with environmental laws at all of the 10 military bases that were examined, including the bases in Germany where there was contamination from jet fuel, used oil, degreasing solvents, and other chemicals. With regard to whether the veteran's diagnosed NHL is etiologically related to such exposure, the evidence of record contains extensive medical opinions from the following VA physicians and/or physician's assistant: Dr. J.G.; Dr. B.S; Dr. M.K.; Dr. K.L.; and M.H., PA-C. Dr. J.G. and Dr. M.K. stated in pertinent part: It is believed that [the veteran's] cancer was caused by exposure to Trichloroethylene while in the military in Germany. Trichloroethylene is a documented carcinogen and has been implicated in various cancers, including lymphomas. Dr. K.L., from the Department of Hematology/Oncology, stated in pertinent part: I am the medical oncologist for [the veteran] and am writing this letter regarding his exposure to chemicals while he served in the Army. [The veteran] had exposure to trichloroethylene (TCE) and possibly other carcinogens mainly during the 1968 and 1969 when he handled chemicals to clean engines of Armored Personal Carriers. He was not required to wear any protective equipment as it was not supplied to workers. It is also possible that he was exposed to drinking water contaminated with TCE at several bases where he worked, including Ft. Ord., CA, Ft. Dix, NJ and Baumnolder as there have been many reports indicating that detectable TCE was found in the drinking water samples....The exact etiology of lymphomas is unclear but it does involve genetic mutations thought to arise from viruses and possible chemical exposures. There have been many studies linking the possible exposure to TCE and NHL. Please refer to Occup Environ Med 2006; 63:597-607 and Am J Ind Med 2005; 48:249-58 for more details. It is very difficult to prove a link between these chemicals and NHL given that it would not be ethical to test humans and prospectively wait for them to get cancer. Therefore, the best evidence we have relies on retrospective reviews of people exposed in the past. Based on this information, it is very possible that [the veteran's] prior exposure to TCE and possibly other chemicals is associated or linked to his current diagnosis of NHL. Dr. B.S., a stem cell transplant attending, stated in pertinent part: During his tour, he was assigned to the motor pool. In this position, he was exposed to fuel (benzene), which has been connected in some studies with Non- Hodgkin's Lymphoma. Unfortunately, [the veteran] was diagnosed with NHL in July 2002. It is my belief, as a physician with experience in research and practice in oncology and hematology, that these exposures were, as likely as not, the cause of his diagnosis of Non-Hodgkin's Lymphoma. The veteran also submitted numerous studies linking occupational exposure to benzene and TCE with NHL. (See Molecular Epidemiology and Toxicology Re: Benzene, UC Berkley; at http://ehs.sph.berkely.edu (last visited Nov. 23, 2007); Cancer Epidemiology Biomarkers & Prevention, Benzene Exposure and Risk of Non-Hodgkin Lymphoma, at http://cebp.aacrjournals.org (last visited Nov. 23, 2007); Environmental Contamination: Department of Defense Actives Related to Trichloroethylene dated Jul. 12, 2007); Cancer risks among workers at Danish companies using trichloroethylene: a cohort study, at http://www.ncbi.nlm.nih.gov (last visited Apr. 2007); et. al. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the Court has held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Resolving reasonable doubt in favor of the veteran, the Board finds that the veteran's reports of his exposure to benzene and TCE during active duty are plausible based on the evidence of record. While recognizing that VA has been unable to verify whether the veteran was exposed to these carcinogens during service, the positive nexus opinions from VA physicians coupled with service personnel records that do reflect that the veteran served as a truck driver/repairman for almost a year during service and scientific research articles linking exposure to these chemicals to NHL, leads the Board to conclude the balance of positive and negative evidence is at the very least in relative equipoise. As such, the benefit of the doubt rule mandates that the Board decide in the veteran's favor. Accordingly, service connection for NHL is granted. ORDER Entitlement to service connection for Non-Hodgkin's Lymphoma is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs