Citation Nr: 1207451 Decision Date: 02/28/12 Archive Date: 03/09/12 DOCKET NO. 05-14 489A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for polycythemia vera, to include as due to herbicide exposure. 2. Entitlement to service connection for cirrhosis of the liver, to include as due to herbicide exposure. 3. Entitlement to service connection for enlarged spleen, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1967. Service personnel records indicate that he served in Vietnam from June 1966 to May 1967. He died in August 2009 and his widow has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claim. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and a May 2006 rating decision by the Roanoke, Virginia RO. The Board previously denied the Veteran's claims in August 2007. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2008, the Court granted a joint motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the joint motion. The Board dismissed the Veteran's appeal in October 2009 due to the Veteran's death during the pendency of the appeal. The Board's dismissal did not affect the right of an eligible person to file a request to be substituted as the appellant, pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (West Supp. 2010), substitution in case of death of a claimant who dies on or after October 10, 2008). See 76 Fed. Reg. 8,666-01 (Feb. 15, 2011) (Proposed Rule). The appellant, as the surviving spouse of the Veteran, has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claims. (She submitted a request for substitution that was received by the RO in November 2009, within one year following the date of the Veteran's death.) In August 2011, the Board referred the case to the Veterans Health Administration (VHA) for an advisory medical opinion. The Board also notes that in January 2011, the appellant perfected an appeal of the issue of entitlement to an increased rating for PTSD for the purpose of accrued benefits. The record does not show that this issue has been certified for appellate consideration by the Board. Accordingly, the issue is not currently before the Board. FINDINGS OF FACT 1. The Veteran's polycythemia vera was not manifested in service or for many years thereafter, and is not shown to be related to service, to include any herbicide exposure therein. 2. The Veteran's cirrhosis of the liver and enlarged spleen were not manifested in service or for many years thereafter, and are not shown to be related to service, to include any herbicide exposure therein, or service-connected disability. CONCLUSIONS OF LAW 1. Service connection for polycythemia vera is not warranted. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.318 (2011). 2. Service connection for cirrhosis of the liver is not warranted. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.318 (2011). 3. Service connection for enlarged spleen is not warranted. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.318 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in September 2003, December 2005, March 2006 and August 2006. Although the Veteran was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claims. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had adequate VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Veteran's available service treatment records (STRs) are associated with the claims file. The Veteran's pertinent post-service treatment records are associated with his claims file. VA obtained an expert VHA opinion in 2011. There is no identified, outstanding, available evidence, to include medical records, which could be obtained to substantiate the claims. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) . Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin's lymphoma; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. In July 2009, the National Academy of Sciences (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008). A determination was made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes: hypertension; cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); breast cancer; cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer (kidney and renal pelvis); cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine organs); leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); chronic peripheral nervous system disorders; respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disorder, and farmer's lung); gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (other than ischemic heart disease); endometriosis; effects on thyroid homeostasis; and certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people. 75 Fed. Reg. 81332 (December 27, 2010). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's service personnel records reflect that he served in the Republic of Vietnam. His STRs are silent for complaints or findings related to polycythemia vera, cirrhosis of the liver and enlarged spleen. Private treatment reports from M. C., M.D., of the Wake Forest University Medical Center reveal a diagnosis of polycythemia vera in October 1989. Private treatment reports from Wake Forest University Baptist Hospital dated from February 2004 to April 2006 reveal that the Veteran was noted to have a history of cirrhosis and enlarged spleen secondary to polycythemia vera in May 2005. In a May 2006 letter to his congressman, the Veteran reported his history of polycythemia vera. He reported that his doctors were unable to provide a reason for his diagnosis, "except that it might have been [his] exposure to Agent Orange." He also stated, "Leukemia, a blood disease, can be caused by exposure to Agent Orange, but [polycythemia vera], a blood disease, is not caused by exposure to Agent Orange. If it can cause one blood disease, how can they be so sure it can't cause another." Associated with the claims file is a February 2007 letter from Dr. H. that notes the Veteran's history of polycythemia vera with massive splenomegaly, skin cancer, significant peripheral neuropathy, cirrhosis and esophageal varices. Dr. H. noted that the Veteran served in Vietnam and was exposed to Agent Orange which has been associated with multiple blood cancers and problems, including peripheral neuropathy. He opined that "some" of the Veteran's medical problems were related to his Agent Orange exposure. Associated with the claims file is a Social Security Administration (SSA) determination and medical records relied upon by SSA in promulgating its decision. The Veteran was awarded disability benefits based on a diagnosis of polycythemia vera effective from April 2005. The medical records associated with the decision were from Wake Forest University Baptist Medical Center dated from July 2002 and February 2005 and from Carilion Family Medicine dated from April 2002 to April 2005; they document treatment for polycythemia vera and splenomegaly. Pursuant to the Board's referral of this case for a VHA medical opinion, the VHA physician reviewed the Veteran's claims folder and the conclusions of the NAS in October 2011 and also responded to the following questions: 1. Is it at least as likely as not (i.e., a 50 % or better probability) that the Veteran's polycythemia vera was causally related to his period of military service, and specifically was it related to his exposure to Agent Orange in service? 2. Is it at least as likely as not (i.e., a 50 % or better probability) that the Veteran's cirrhosis of the liver was causally related to his period of military service, and specifically was it related to his exposure to Agent Orange in service? 3. Is it at least as likely as not (i.e., a 50 % or better probability) that the Veteran's enlarged spleen was causally related to his period of military service, and specifically was it related to his exposure to Agent Orange in service? Based on a review of the evidence of record, including the Veteran's May 2006 letter to his congressman, and the conclusions of the NAS, the VHA physician opined, in pertinent part: . . . I conclude that it is unlikely that the veteran's polycythemia vera was caused by Agent Orange exposure. Since the hepatic cirrhosis and splenomegaly were related to the polycythemia vera , they are also unlikely to have been caused by exposure to Agent Orange. . . . For the vast majority of patients with polycythemia vera, a cause of such is not known. While a relationship between the JAK2 mutation and other chemical (e.g. benzene) radiation exposure (CDC) may exist, we have so far not discovered such a relationship between Agent Orange and polycythemia vera. The [Veteran] also asked how it could be that Agent Orange could cause one blood disease and not another. This phenomenon is well known in medicine, most likely due to the fact that different substances cause different molecular lesions. An example is lung cancer and tobacco. If a patient has squamous cell lung cancer or small cell lung cancer and is a smoker, the cancer is likely due, at least in part, to the tobacco. If the patient has adenocarcinoma of [the] lung, however, the smoking would most likely be coincidental. It may one day be determined that Agent Orange can cause polycythemia vera, but at present there is simply no evidence to that effect. Analysis The record does not contain any evidence that the Veteran's polycythemia vera, cirrhosis of the liver, and enlarged spleen were manifested in service or immediately following service. In fact, there is no post-service medical evidence of polycythemia vera until 1989, more than 20 years after the Veteran's discharge. Cirrhosis of the liver and enlarged spleen were diagnosed years after the polycythemia vera diagnosis. Consequently, service connection for these disabilities on the basis that they became manifest in service is not warranted. Moreover, while the Veteran served in Vietnam, and is presumed to have been exposed to Agent Orange, polycythemia vera, cirrhosis of the liver and enlarged spleen are not enumerated among the diseases the Secretary has determined are related to herbicide (Agent Orange) exposure. See 38 C.F.R. § 3.309(e). Consequently, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply. Service connection for the claimed disabilities may still be established by affirmative, competent and probative evidence showing that such disabilities were at least as likely as not related to service (including to Agent Orange exposure therein). See Combee, supra. The opinion of Dr. H, noted above, cannot be said to be an unequivocal statement linking the Veteran's Agent Orange exposure in service to his polycythemia vera, cirrhosis and/or enlarged spleen. Dr. H noted that the Veteran served in Vietnam and was exposed to Agent Orange which has been associated with multiple blood cancers and problems including peripheral neuropathy. He opined that "some" of the Veteran's medical problems were related to his Agent Orange exposure, but he did not say which ones. In fact, the only definite association he made was between Agent Orange exposure and peripheral neuropathy. With respect to the specifics of the Veteran's case, Dr. H said only that Agent Orange has been associated with multiple cancers and blood problems. He did not directly address the Veteran's disabilities at issue. There is no indication that he rendered his opinion following a review of all pertinent records. Moreover, he did not refer to the NAS conclusions (noted above). This medical opinion cannot therefore be said to show that the Veteran's polycythemia vera, cirrhosis, or enlarged spleen were related to his military service. Conversely, the October 2011 advisory opinion is clearly against the claims. The VHA physician opined that there is no definite evidence to date that polycythemia vera is associated with Agent Orange exposure. He concluded that it is unlikely that the Veteran's polycythemia vera was caused by Agent Orange exposure, and, because the Veteran's hepatic cirrhosis and splenomegaly were related to the polycythemia vera, they were also unlikely to have been caused by exposure to Agent Orange. These opinions were based on a review of the Veteran's entire pertinent medical history and NAS conclusions as noted above. The VHA physician provided a detailed explanation of the rationale for his conclusion, as noted above. In light of the foregoing, the Board finds the VHA opinion the most probative and persuasive evidence in this matter. Furthermore, the Veteran's polycythemia vera was not manifested until more than 20 years after his discharge from active duty; his cirrhosis and splenomegaly were manifested even later. Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As regards the claim that the Veteran's cirrhosis and enlarged spleen were secondary to his polycythemia vera, inasmuch as polycythemia vera is not service connected, a threshold legal requirement for establishing service connection for cirrhosis and enlarged spleen as secondary to such disability, as alleged, is not met. The Board has also considered the Veteran's (and his widow's) statements to the effect that the Veteran's polycythemia vera was incurred during his military service as a result of his exposure to Agent Orange. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Here, as laypersons, the Veteran and his widow are not competent to provide a probative opinion regarding the etiology of the claimed disabilities. The Board has considered the benefit of the doubt doctrine; as the preponderance of the evidence is against the claims, that doctrine does not apply. ORDER Entitlement to service connection for polycythemia vera, to include as due to herbicide exposure, is denied. Entitlement to service connection for cirrhosis of the liver, to include as due to herbicide exposure, is denied. Entitlement to service connection for enlarged spleen, to include as due to herbicide exposure, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs