Citation Nr: 0726852	
Decision Date: 08/28/07    Archive Date: 09/04/07

DOCKET NO.  05-28 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
chronic myeloid genus leukemia (CML), claimed as secondary to 
herbicide exposure in Vietnam.

2.  Entitlement to service connection for a left hip 
disability, claimed as secondary to CML.

3.  Entitlement to service connection for a right hip 
disability, claimed as secondary to CML.

4.  Entitlement to service connection for arthritis of the 
shoulders, claimed as secondary to CML.

5.  Entitlement to service connection for bilateral 
cataracts, secondary to CML.




REPRESENTATION

Veteran represented by:	Minnesota Department of 
Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The veteran and his spouse


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The veteran served on active duty from September 1969 to 
September 1973.

This matter came to the Board of Veterans' Appeals (Board) on 
appeal from rating decisions of the Department of Veterans 
Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

In an August 2004 rating decision, the RO determined that new 
and material evidence had not been received to reopen a 
previously denied claim of service connection for CML.  In a 
May 2006 rating decision, the RO denied service connection 
for a left hip disability, arthritis of the hips, arthritis 
of the shoulders, and bilateral cataracts.

A hearing at the RO was held in March 2007 before Kathleen K. 
Gallagher, a Veterans Law Judge who was designated by the 
Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 
7107(c) (West 2002) and who is rendering the determination in 
this case.

As set forth in more detail below, a remand is required with 
respect to the issues of service connection for bilateral hip 
disabilities, arthritis of the shoulders, and bilateral 
cataracts.  These issues are addressed in the REMAND portion 
of the decision below and are REMANDED to the RO via the 
Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a March 1994 rating decision, the RO denied the 
veteran's original claim of service connection for CML.  
Although he was notified of the RO's decision and his 
appellate rights, he did not perfect an appeal within the 
applicable time period.

2.  In November 1999 and July 2003 rating decisions, the RO 
determined that new and material evidence had not been 
received to reopen the previously denied claim of service 
connection for CML.  Although the veteran was notified of the 
RO's decisions and his appellate rights, he did not perfect 
an appeal within the applicable time period.

3.  The veteran thereafter requested reopening of his claim 
of service connection for CML in April 2004.  

4.  The evidence received since the last final rating 
decision denying service connection for CML relates to an 
unestablished fact necessary to substantiate the claim, and 
raises a reasonable possibility of substantiating the claim 
of service connection for CML.

5.  The veteran served in the Republic of Vietnam during the 
Vietnam era and is therefore presumed to have been exposed to 
Agent Orange.

6.  The most probative evidence of record indicates that the 
veteran's CML is causally related to his exposure to Agent 
Orange in Vietnam.  


CONCLUSIONS OF LAW

1.  The March 1994, November 1999, and July 2003 rating 
decisions denying service connection for CML are final.  38 
U.S.C.A. § 7105(c) (West 2002).

2.  Evidence received since the last final rating decision 
denying service connection CML is new and material, and the 
veteran's claim of entitlement to service connection for CML 
is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2006).

3.  CML was incurred during active service.  38 U.S.C.A. §§ 
1110, 1116 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 
(2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

As a preliminary matter, the Board finds that no further 
action is necessary to comply with VA's duties to notify and 
assist the veteran under the Veterans Claims Assistance Act 
of 2000 (VCAA).  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. 
§ 3.159.  In light of the favorable decision below, it is 
clear that any deficiency in VA's VCAA notice or development 
action is harmless error. 


Background

The veteran's medical and personnel records are negative for 
complaints or findings of leukemia.  He served in Vietnam 
from March to December 1971 and was awarded the Vietnam 
Service Medal.  

In October 1990, the veteran submitted an original 
application for VA compensation benefits, seeking service 
connection for leukemia, secondary to exposure to Agent 
Orange in Vietnam.  In support of his claim, he submitted a 
September 1989 letter from the Mayo Clinic showing that he 
had been diagnosed as having CML in August 1989.

In a March 1994 rating decision, the RO denied service 
connection for leukemia, finding that such condition had not 
been present in service or for many years thereafter, nor was 
such condition among the presumptive diseases linked to Agent 
Orange exposure.  The veteran was notified of the RO's 
decision and his appellate rights in a March 1994 letter, but 
he did not appeal.

In July 1999, the veteran requested reopening of his claim of 
service connection for leukemia.  In support of his claim, 
the RO obtained private clinical records showing that the 
veteran had been diagnosed as having CML in August 1989.  In 
August 1990, he underwent a bone marrow transplant.  He was 
thereafter placed on IV steroid therapy, which was tapered 
off in February 1991.  On follow-up in August 1995, it was 
noted that the veteran remained well and was without 
complaints.  Physical examination was unremarkable.  

In a November 1999 rating decision, the RO determined that 
new and material evidence had not been received to reopen the 
claim of service connection for leukemia.  The RO noted that 
such condition had not been present in service or for many 
years thereafter, nor was CML among the presumptive diseases 
linked to Agent Orange exposure.  The veteran was notified of 
the RO's decision and his appellate rights in a December 1999 
letter, but he did not appeal.

In February 2003, the veteran again requested reopening of 
his claim of service connection for CML, noting that leukemia 
had recently been added to the list of diseases presumed to 
be related to Agent Orange.  He submitted no evidence in 
support of his claim.

In a July 2003 rating decision, the RO determined that new 
and material evidence had not been received to reopen the 
claim of service connection for leukemia.  The RO noted that, 
although new legislation now provided for presumptive service 
connection for chronic lymphatic leukemia (CLL) on the basis 
of Agent Orange exposure, such new legislation had not 
included CML on the list of presumptive diseases.  Thus, the 
RO concluded that service connection for CML remained denied.  
The veteran was notified of the RO's decision in a July 2003 
letter, but he did not appeal.

In April 2004, the veteran again requested reopening of his 
claim of service connection for CML, secondary to exposure to 
Agent Orange in Vietnam.  

In a statement in support of his claim, the veteran indicated 
that in 1971, he had served at Son Nhut Air Force Base as an 
aircraft controller and warnings operator.  During his tour 
of duty there, he indicated that the base was sprayed with 
herbicides in order to control both the insect population and 
unwanted foliage.  He indicated that the base was sprayed by 
trucks, as well as by planes.  

The veteran also submitted a March 2004 letter from Philip 
McGlave, M.D., who indicated that he had treated the veteran 
with a bone marrow transplant for CML in August 1990.  Dr. 
McGlave noted that the veteran had served in Vietnam and been 
exposed to Agent Orange, an herbicide agent mixed using 
benzene.  Dr. McGlave indicated that "[t]here is no doubt 
that benzene can be a causative factor in leukemia, and 
exposure to it when he was in Vietnam is as likely as not the 
cause of [the veteran's] subsequent development of CML."

The veteran was afforded a VA medical examination in June 
2004, at which he reported that he had been diagnosed as 
having CML in 1989 and had undergone a bone marrow transplant 
in 1990.  He indicated that he had done extremely well since 
that time and continued to work full time.  After examining 
the veteran, the examiner's diagnoses included CML, with no 
evidence of a recurrence.  The examiner indicated that 
although CML had not been added to the list of diseases 
associated with Agent Orange exposure, given the benzene 
composition of Agent Orange, and given the fact that other 
lymphomas and leukemias had been statistically associated 
with Agent Orange exposure, it was his opinion that it is as 
least as likely as not that the veteran's CML is related to 
his military service in Vietnam.

In an August 2004 rating decision, the RO determined that new 
and material evidence had not been submitted to reopen a 
claim of service connection for CML.  The RO noted that there 
was no evidence that the veteran's CML was present during 
service or for many years thereafter, nor was CML among the 
listed Agent Orange presumptive diseases.  In addition, the 
RO noted that recent examination showed that the veteran's 
CML had been cured.  

The veteran appealed the RO's decision.  In support of his 
appeal, he submitted a May 2005 letter from Dr. McGlave, who 
noted that the veteran had been exposed to Agent Orange in 
Vietnam, an herbicide which contained benzene.  He indicated 
that there was no doubt that benzene can be a causative 
factor in leukemia, and the veteran's exposure to it in 
Vietnam is as likely as not the causative factor in the 
subsequent development of CML.  

At his March 2007 hearing, the veteran testified that he had 
been stationed at Son Nhut Air Force Base in Vietnam from 
March to December 1971.  During that time, he indicated that 
he observed trucks spraying chemicals on a daily basis.  He 
indicated that in 1989, he was diagnosed as having CML.  He 
indicated that it was his belief that his CML was due to his 
exposure to Agent Orange while in Vietnam.  The veteran's 
spouse testified that she had conducted research regarding 
her husband's condition and had learned that in order to 
spray Agent Orange, it had to be mixed with diesel fuel, 
which was composed primarily of benzene.  She indicated that 
it was her belief that the veteran's exposure to benzene also 
caused his CML.


Applicable Law

Service connection

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in line of duty in the active military, naval, or air 
service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or 
disease occurred in service is not enough; there must be 
chronic disability resulting from that injury or disease.  If 
there is no showing of a resulting chronic condition during 
service, then a showing of continuity of symptomatology after 
service is required to support a finding of chronicity.  38 
C.F.R. § 3.303(b).  Service connection may also be granted 
for any injury or disease diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease or injury was incurred in 
service.  38 C.F.R. § 3.303(d).

Service connection for certain diseases, including leukemia, 
may be also be established on a presumptive basis by showing 
that such a disease manifested itself to a degree of 10 
percent or more within one year from the date of separation 
from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 
3.309(a).  In such cases, the disease is presumed under the 
law to have had its onset in service even though there is no 
evidence of such disease during the period of service.  38 
C.F.R. § 3.307(a).  

In addition to the criteria set forth above, a veteran who, 
during active military, naval, or air service, served in the 
Republic of Vietnam during the Vietnam era shall be presumed 
to have been exposed during such service to an herbicide 
agent, unless there is affirmative evidence to establish that 
the veteran was not exposed to any such agent during that 
service.  38 C.F.R. § 3.307(a)(6)(iii).

If a veteran was exposed to a herbicide agent during active 
military, naval, or air service, certain enumerated diseases 
shall be service connected if the requirements of 38 U.S.C.A. 
§ 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.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 
C.F.R. § 3.309(e).

The following diseases are associated with herbicide exposure 
for purposes of the presumption:  chloracne or other acneform 
disease consistent with chloracne, type 2 diabetes (also 
known as type II diabetes mellitus or adult-onset diabetes), 
Hodgkin's disease, chronic lymphocytic leukemia, multiple 
myeloma, non-Hodgkin's lymphoma, acute and subacute 
peripheral neuropathy, porphyria cutanea tarda, prostate 
cancer, respiratory cancers (cancer of the lung, bronchus, 
larynx, or trachea), and soft-tissue sarcoma (other than 
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or 
mesothelioma).  38 C.F.R. § 3.309(e).

VA has concluded that there is insufficient or inadequate 
evidence of an association between exposure to herbicides 
and other forms of leukemia to warrant a presumption of 
service connection.  See Health Outcomes Not Associated With 
Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 
(June 12, 2007).  

Notwithstanding the foregoing, the United States Court of 
Appeals for the Federal Circuit (Federal Circuit) has 
determined that the Veteran's Dioxin and Radiation Exposure 
Compensation Standards (Radiation Compensation) Act, Pub. L. 
No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not 
preclude a veteran from establishing service connection with 
proof of actual direct causation.  Combee v. Brown, 34 F.3d 
1039 (Fed. Cir. 1994).  

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the benefit of the doubt shall be given to the 
claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt 
arises regarding service origin, such doubt will be resolved 
in the favor of the claimant.  Reasonable doubt is doubt 
which exists because of an approximate balance of positive 
and negative evidence which does not satisfactorily prove or 
disprove the claim.  38 C.F.R. § 3.102.  The question is 
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 event the claim must be denied.  See Gilbert 
v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  

New and Material Evidence

In general, decisions of the RO that are not appealed in the 
prescribed time period are final.  38 U.S.C.A. § 7105(c) 
(West 2002); 38 C.F.R. § 20.1103 (2006).  Pursuant to 
38 U.S.C.A. § 5108, a finally disallowed claim may be 
reopened when new and material evidence is presented or 
secured with respect to that claim.

For claims such as this one, filed on or after August 29, 
2001, new evidence means existing evidence not previously 
submitted to agency decision makers.  Material evidence means 
existing evidence that, by itself or when considered with 
previous evidence of record, relates to an unestablished fact 
necessary to substantiate the claim.  New and material 
evidence can be neither cumulative nor redundant of the 
evidence of record at the time of the last prior final denial 
of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim.  
38 C.F.R. § 3.156 (2006).

To reopen a previously disallowed claim, new and material 
evidence must be presented or secured since the last final 
disallowance of the claim on any basis, including on the 
basis that there was no new and material evidence to reopen 
the claim since a prior final disallowance.  See Evans v. 
Brown, 9 Vet. App. 273, 285 (1996).  For purposes of 
reopening a claim, the credibility of newly submitted 
evidence is generally presumed.  See Justus v. Principi, 3 
Vet. App. 510, 513 (1992) (in determining whether evidence is 
new and material, "credibility" of newly presented evidence 
is to be presumed unless evidence is inherently incredible or 
beyond competence of witness).


Analysis

As set forth above, in a March 1994 rating decision, the RO 
denied service connection for CML on the basis that such 
disability was not present during service or for many years 
thereafter, nor was CML on the list of presumptive diseases 
for exposure to Agent Orange.  

The veteran thereafter requested reopening of his claim of 
service connection for CML.  In November 1999 and July 2003 
rating decisions, the RO determined that new and material 
evidence to reopen the claim had not been received.  

Because the veteran did not appeal the rating decisions 
discussed above, they are final and not subject to revision 
on the same factual basis.  38 U.S.C.A. § 7105(c); 38 C.F.R. 
§ 20.1103 (2006).
Again, the veteran seeks to reopen his claim.  Despite the 
finality of a prior adverse decision, a claim will be 
reopened and the former disposition reviewed if new and 
material evidence is furnished with respect to the claim 
which has been disallowed.  38 U.S.C.A. § 5108 (West 2002); 
38 C.F.R. § 3.156 (2006).

Thus, the Board has reviewed the record, with particular 
attention to the additional evidence received since the last 
final rating decision in July 2003.  After reviewing the 
record, the Board finds that the additional evidence received 
is new and material within the meaning of 38 C.F.R. § 3.156.

The additional medical evidence received includes March 2004 
and May 2005 letters from Dr. McGlave, as well as a June 2004 
VA medical examination report.  As delineated above, these 
documents contain medical opinions linking the veteran's CML 
to his exposure to Agent Orange in Vietnam.  

The Board finds that this evidence is new in that in was not 
previously of record.  Moreover, the Board finds that this 
evidence relates to an unestablished fact necessary to 
substantiate the claim, and it raises a reasonable 
possibility of substantiating the claim.  For these reasons, 
the Board finds that the additional evidence received since 
July 2003 warrants a reopening of the veteran's claim of 
service connection for CML as it is new and material evidence 
within the meaning of 38 C.F.R. § 3.156.

Turning to the merits of the veteran's claim, the Board notes 
that the veteran argues that service connection for CML is 
warranted on the basis that his condition developed as a 
result of his exposure to Agent Orange in Vietnam.  

The veteran's service medical and personnel records show that 
he served in the Republic of Vietnam during the Vietnam era.  
It is therefore presumed that he was exposed to Agent Orange 
in Vietnam, in the absence of affirmative evidence to the 
contrary.  38 C.F.R. §§ 3.307(a)(6) (2005).  Nonetheless, 
because CML is not among the disabilities listed in 38 C.F.R. 
§ 3.309(e), presumptive service connection for CML due to 
Agent Orange exposure is not warranted.  

Accordingly, the Board has reviewed the evidence of record to 
determine if service connection for CML on a direct basis is 
warranted.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 
(Fed. Cir. 1994); see also Brock v. Brown, 10 Vet. App. 155, 
160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 
2000).

In that regard, the record shows that CML was not present 
during the veteran's active service or manifest to a 
compensable degree within the first post-service year.  The 
veteran does not argue otherwise.  Indeed, the record shows 
that the veteran was not diagnosed as having CML until 1989, 
approximately 26 years after his separation from active 
service.  

Although the record shows that CML was not present in service 
or for many years thereafter, as set forth above, service 
connection may be granted for any disease 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).  Thus, if there is a causal 
connection between the veteran's CML and any incident of 
service, including Agent Orange exposure, service connection 
may be established.  Godfrey v. Derwinski, 2 Vet. App. 354 
(1992).

In view of the foregoing, the Board has carefully reviewed 
the medical evidence of record, with particular attention to 
the etiology of the veteran's CML.  As set forth above, the 
veteran has submitted two medical opinions from Dr. McGlave, 
the former head of Hematology and the Adult Bone Marrow 
Transplant Program at the University of Minnesota Hospital.  
Dr. McGlave has stated unequivocally that it is his opinion 
that the veteran's CML is related to the veteran's exposure 
to Agent Orange in Vietnam.

Also of record is a June 2004 VA medical examination report 
in which the examining VA physician likewise concludes that 
the veteran's CML is due to his exposure to Agent Orange in 
Vietnam.

The Board notes that there is no other medical opinion of 
record which contradicts the conclusions of Dr. McGlave and 
the June 2004 VA medical examiner.  

However, the Board has considered that based on studies 
conducted by the National Academy of Sciences (NAS), VA has 
determined that a presumption of service connection is not 
warranted based on exposure to herbicides used in the 
Republic of Vietnam for any leukemia other than chronic 
lymphocytic leukemia (CLL).  See Health Outcomes Not 
Associated With Exposure to Certain Herbicide Agents, 72 
Fed. Reg. 32,395 (June 12, 2007).  

Nonetheless, in reviewing the evidence in its entirety, the 
Board finds that there is at least an approximate balance of 
positive and negative evidence regarding the merits of the 
claim.  Again, the record contains two competent medical 
opinions linking the veteran's CML to his exposure to Agent 
Orange in Vietnam.  While the Board has considered that VA 
has concluded that presumptive service connection is not 
warranted for any leukemia other than CLL, such fact does not 
preclude direct service connection based on uncontradicted 
medical opinions.  See Stefl v. Nicholson, 21 Vet. App. 120 
(2007) (holding that the availability of presumptive service 
connection for some conditions based on exposure to Agent 
Orange does not preclude direct service connection for other 
conditions based on exposure to Agent Orange).  

As noted, under 38 U.S.C.A. § 5107(b), 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.  In other words, the preponderance of the 
evidence must be against the claim for the benefit to be 
denied.  Gilbert, 1 Vet. App. at 54.  Given the evidence set 
forth above, such a conclusion cannot be made in this case.  
Thus, the Board finds that the evidence of record is 
sufficient to award service connection for CML.


ORDER

Entitlement to service connection for CML is granted.




REMAND

The veteran also seeks service connection for bilateral hip 
disabilities, bilateral shoulder disabilities, and bilateral 
cataracts, secondary to his now service-connected CML.  
Specifically, he claims that following his bone marrow 
transplant for CML, he was treated with high dose steroids, 
which caused him to develop arthritis in his hips and 
shoulders, as well as cataracts in both eyes.  

In support of his claim, the veteran has submitted a May 2005 
letter from Dr. McGlave who noted that the veteran's course 
of treatment for CML had included total body irradiation, 
high dose chemotherapy, and prednisone.  He noted that the 
combination of these treatments as likely as not led to joint 
deterioration.  Dr. McGlave also noted that development of 
cataracts was a common side effect.  

A review of the record indicates that the veteran has not yet 
been afforded a VA medical examination in connection with his 
claims.  Given the evidence of record, such an examination is 
necessary.  See 38 C.F.R. § 3.159(c)(4) (2006); see also 
McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that 
VA must provide a VA medical examination when there is 
competent evidence of a current disability and an indication 
that the disability may be associated with another service-
connected disability).  

In addition, the Board notes that effective October 10, 2006, 
38 C.F.R. § 3.310, the regulation pertaining to claims for 
secondary service connection, was revised to conform to the 
Court's decision in Allen v. Brown, 7 Vet. App. 439, 448 
(1995).  See 71 Fed. Reg. 52,744 (Sept. 7, 2006).  The 
veteran has not been advised of the amendment to that 
regulation.

Accordingly, the case is REMANDED for the following action:

1.  The veteran should be afforded a VA 
medical examination(s) for the purpose of 
clarifying the nature and etiology of any 
current bilateral hip, shoulder, and 
cataract disabilities.  The claims file 
should be made available to the 
examiner(s) for review in connection with 
the examination(s).  The examiner(s) 
should be asked to provide an opinion as 
to whether it is as least as likely as 
not that any current left hip disability, 
right hip disability, left shoulder 
disability, or bilateral cataract 
disability identified on examination is 
causally related to or aggravated by the 
veteran's service-connected CML.  The 
report of examination should include a 
complete rationale for all opinions 
rendered.

2.  After the above development has been 
completed, the RO should review all the 
evidence of record in readjudicating the 
veteran's claim.  If the veteran's claims 
remain denied, he and his representative 
should be provided with a supplemental 
statement of the case, which includes a 
citation to the amended version of 
section 3.310, and an opportunity to 
respond. 

The case should then be returned to the Board for appropriate 
appellate consideration.  The veteran has the right to submit 
additional evidence and argument on the matter or matters the 
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs