MALIGNANT NEOPLASMS OF THE DIGESTIVE SYSTEM

Summary

The veteran, who served from March 1966 to March 1970, appeals the denial of service connection for lymphoma. The veteran previously claimed non-Hodgkin's lymphoma in 2008 and 2019, believing it was due to his Vietnam service. The Board reviewed the evidence, including service treatment records, private medical records, and a VA examination from September 2019. Service treatment records did not document any treatment, complaints, symptoms, or diagnoses specific to lymphoma; the separation examination in March 1970 listed all systems as clinically normal. While private records noted possible early-stage chronic lymphocytic leukemia in 2003, subsequent records consistently mentioned lymphedema but not lymphoma. The VA examiner concluded the Veteran does not have a current diagnosis of non-Hodgkin's lymphoma or myeloma, and opined it was less likely than not that any disorder was directly related to service. The Board found the VA examiner's opinion to be the most probative evidence, noting the lack of competent medical evidence establishing a current diagnosis of lymphoma. Lay testimony regarding lymphoma was considered but found insufficient for diagnosis. The Board concluded the weight of the evidence was against the claim, and as there was no approximate balance of evidence, the benefit-of-the-doubt rule did not apply. Service connection for lymphoma was denied.

Rationale

No competent medical evidence of current lymphoma diagnosis; VA examiner opined less likely than not related to service; Weight of evidence against claim

Full Decision Text

Citation Nr: A22016999
Decision Date: 08/25/22	Archive Date: 08/25/22

DOCKET NO. 191125-54987
DATE: August 25, 2022

ORDER

Entitlement to service connection for lymphoma is denied.

FINDING OF FACT

The Veteran does not have a lymphoma disease.

CONCLUSION OF LAW

Lymphoma was not incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1966 to March 1970.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) (to be codified as amended in scattered sections of 38 U.S.C.).  This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review on or after February 19, 2019. As this case is an appeal of a September 2019 rating decision, this decision has been written consistent with the new AMA framework. 

In November 2019, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) electing a hearing with a Veterans Law Judge.

The Veteran had a hearing scheduled for March 22, 2022 but did not attend the hearing. Subsequently, on March 30, 2022, the Board notified the Veteran that any correspondence sent by the Board July 2021 to December 2021 may not have been received timely. It gave the Veteran an additional 90 days to respond to any correspondence postmarked during that time period. However, the Veteran submitted no additional correspondence and the time period indicated has ended.  

1. Entitlement to service connection for lymphoma

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The Court of Appeals for Veterans Claims has held that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

In a July 2019 supplemental claim, the Veteran claimed service connection for non-Hodgkin's lymphoma. Notably, the Veteran's DD-214 confirms that he had service in Vietnam.

During this current appeal, the Veteran does not make a specific argument regarding service connection for lymphoma, but previously claimed service connection for non-Hodgkins lymphoma. The Board notes that he previously claimed in June 2008 that he had non-Hodgkins lymphoma and believed that it was due to his service in Vietnam.

Service treatment records do not document any relevant treatment, complaints, symptoms, or diagnoses specific to a lymphoma. The Veteran's March 1970 separation examination lists all relevant systems as "clinically normal." The Veteran's report of medical history notes excellent health and does not list any medical issues. 

In a January 2003 medical treatment record, a private examiner noted the Veteran might have early stage chronic lymphocytic leukemia. Subsequently, there are no notes of a lymphoma. For example, a
 but previously claimed service connection for non-Hodgkins lymphoma. The Board notes that he previously claimed in June 2008 that he had non-Hodgkins lymphoma and believed that it was due to his service in Vietnam.

Service treatment records do not document any relevant treatment, complaints, symptoms, or diagnoses specific to a lymphoma. The Veteran's March 1970 separation examination lists all relevant systems as "clinically normal." The Veteran's report of medical history notes excellent health and does not list any medical issues. 

In a January 2003 medical treatment record, a private examiner noted the Veteran might have early stage chronic lymphocytic leukemia. Subsequently, there are no notes of a lymphoma. For example, a December 2006 medical treatment record indicated that the Veteran had "stable minimal lymphocytosis... no evidence of leukemia/lymphoma." A June 2009 medical note reported that the Veteran had lymphocytosis.

Per the medical records, the Veteran consistently received treatment for lymphedema, but not for a lymphoma. For example, private medical treatment records consistently list "lymphedema" as a historical medical issue but not "lymphoma." See e.g. Medical Treatment Record- Non-Government Facility, received October 14, 2015.

The Veteran was afforded a VA examination in September 2019. The VA examiner noted that the Veteran had a history of lymphocytosis but noted that the condition resolved by the time of the examination. The examiner noted the Veteran did not have anemia, thrombocytopenia, leukemia, polycythemia vera or sickle cell anemia. The examiner concluded that the Veteran does not have a current diagnosis of non-hodgkin's lymphoma or myeloma.

When asked if it was at least as likely as not that the Veteran's disorder was directly related to service, the VA examiner concluded that it was less likely than not. In terms or rationale, the examiner reiterated his finding that the Veteran does not have a current diagnosis of non-hodgkin's lymphoma or myeloma.

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

In this case, the Board accepts the September 2019 VA medical opinion that the Veteran does not have a diagnosis of a lymphoma disease as probative medical evidence on this point. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a
ant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

In this case, the Board accepts the September 2019 VA medical opinion that the Veteran does not have a diagnosis of a lymphoma disease as probative medical evidence on this point. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See McCray v. Wilkie, 31 Vet. App. 243, 256 (2019).

The Board has considered the lay statements of the Veteran regarding lymphoma. While the Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history, the Veteran is not competent to provide a current diagnosis of a lymphoma during the period on appeal as such a diagnosis is a complex medical opinion beyond the scope of lay diagnosis. See Jandreau, 492 F.3d at 1377. Additionally, the Veteran has not indicated that a medical professional provided him with a diagnosis of lymphoma, non-Hodgkins lymphoma, leukemia or myeloma during the appeal period or that he suffers from current residuals of such a condition.

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Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection for a lymphoma disease. The weight of the competent evidence of record weighs against a finding that the Veteran has had a diagnosis of lymphoma or residuals of such a condition during the period on appeal. In order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disease entity at some point during a veteran's appeal. See McClain; see also Brammer. The Board does not find such evidence. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and service connection for lymphoma is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

Patrick M. Johnson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, Associate 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.