Citation Nr: 0731552 Decision Date: 10/05/07 Archive Date: 10/16/07 DOCKET NO. 06-18 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for myeloproliferative disorder with myelofibrosis secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active military service from April 1967 to May 1972. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a March 2004 rating determination by the above Regional Office (RO). The veteran testified at a videoconference hearing in April 2007, before the undersigned Acting Veterans Law Judge. The Board requested a medical expert opinion from the Veterans Health Administration (VHA) to assist in the adjudication of the appeal. The requested opinion was provided in July 2007. The case is now ready for appellate review. Pursuant to an April 2007 motion and the Board's granting thereof, this case has been advanced on the Board's docket under 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran served on active duty in the Republic of Vietnam during the Vietnam era. 2. He currently has myeloproliferative disorder with myelofibrosis; this condition was initially diagnosed many years after service. 3. Medical evidence is in relative equipoise as to whether the veteran's myeloproliferative disorder with myelofibrosis was caused by exposure to Agent Orange in service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, myeloproliferative disorder with myelofibrosis was incurred as the result of exposure to Agent Orange in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In view of the grant as to the issue of entitlement sought by the veteran in this case, there is no need for additional notice or development. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year, after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(ii) (2007). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Factual Background and Analysis The veteran served on active duty from April 1967 to May 1972. The record confirms he had active service in the Republic of Vietnam, from October 1967 to September 1968, and was presumptively exposed to herbicides during this period. For VA purposes, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i) (2007). Agent Orange is generally considered a herbicide agent. Myeloproliferative disorder with myelofibrosis was diagnosed in June 1990, 17 years after the veteran's separation from service. The veteran's main contention is that during service, he was chronically exposed to herbicides containing benzene and that this exposure eventually caused this disorder. While certain hematologic disorders are included among the listed disabilities under 38 C.F.R. § 3.309(e), myeloproliferative disorder is not. Thus, the presumption afforded under 3.309(e) cannot provide the basis for a grant of service connection. Notwithstanding the fact that the veteran does not meet the above requirements, which would entitle him to presumptive service connection, he is not entirely precluded from establishing service connection for his disorder by way of proof of actual direct causation. See Combee v. Brown, 34 F.3d at 1042 (proof of direct service connection thus entails proof that exposure during service caused the malady that appears many years later). In this regard, the Board finds that the evidence is at least in equipoise with regard to the veteran's claim for entitlement to service connection for myeloproliferative disorder with myelofibrosis. The veteran has submitted evidence which suggests an association between myeloproliferative disorder with myelofibrosis and exposure to chemicals, such as benzene. He submitted articles which discuss the use of Agent Orange during the Vietnam War. The articles indicate that Agent Orange was a 50-50 mix of two chemicals and that the combined product was mixed with kerosene or diesel fuel and dispersed by aircraft. Other articles note that benzene is a volatile aromatic hydrocarbon which causes various types of leukemia, lymphoma and blood diseases, including myelofibrosis. The greatest risk was to workers who use various petroleum solvents containing benzene such as painters, gasoline distribution workers, refinery workers, chemical workers, rubber workers, printers, newspaper pressworkers and shoe and leather workers. The veteran submitted additional articles regarding herbicide exposure, benzene exposure, dioxins and the health risks associated with exposure to small amounts of chemical benzene. There is also a private medical opinion from a hematologist- oncologist regarding the possible causative factors for the development of the veteran's blood disorder. The physician noted the veteran's medical history was notable for exposure to hydrocarbon compound over an extended period of time, including Agent Orange and benzene, during military service with no prior hydrocarbon exposure outside of the military. The veteran acquired the disease in his late 30's, an age approximately a decade or more earlier than the median age of onset in patients, with no known environmental exposure to mutagenic agents. The physician explained that hydrocarbons, as a class of compounds, are known to be highly mutagenic and capable of producing a wide range of DNA defects particularly in highly mitotically active tissue such as the bone marrow. He also noted that there was a very wide range of total exposure risk necessary to produce these DNA defects as well as a wide variance in individual susceptibility to these defects with regard to the subsequent development of neoplastic states. The physician indicated that it was entirely possible for two individuals to receive substantially different exposures to the same compound resulting in completely different outcomes with regard to development of subsequent neoplastic states. The physician also noted the timing of the veteran's exposure in his late teens and early 20's to one or more of these compounds and the subsequent development of the disease 15 to 20 years later is highly compatible with a cause and effect relationship. He also indicated that there was no familial history of hematological disorder that would have predisposed the veteran to the development of this condition, nor was there any coexisting medical problem that would have predisposed him to the development of this condition. The physician concluded that exposure to hydrocarbon-containing substances, in fairly concentrated amounts over protracted period of times, such as reported by the veteran, would have a compelling likelihood of being the causative agent of the premature onset of a hematological condition for which the veteran was otherwise not predisposed. He also acknowledged that he had not been provided with a formal review of the veteran's entire hydrocarbon exposure during service. The veteran underwent VA examination in January 2007. The VA examiner reviewed the veteran's claims file in its entirety, took a detailed history of his service and post-service symptoms, reviewed clinical records, including the February 2005 private medical opinion, and considered pertinent VA regulations. The examiner noted that although Agent Orange- related conditions describe specific hematologic and oncolgic conditions, agnogenic myeloid metaplasia or myelofibrosis was not one of them. The examiner then concluded the issue could not be resolved without resorting to speculation. During his videoconference hearing in April 2007 the veteran essentially reiterated previously submitted information concerning the extent of his disability and consistent with clinical findings obtained during VA examination. In July 2007, the Board solicited the opinion of a VA hematologist and oncologist. The expert was asked to address the likelihood of a relationship between the veteran's current hematologic disorder and in-service herbicide an benzene exposure. In rendering her opinion, the physician took into consideration the veteran's previous medical history, the extensive medical evaluations, and the veteran's history of Agent Orange and benzene exposure in Vietnam. Based on the evidence of record, the physician concluded that given the rarity of the disease, mainly in patients in their early 40s, and cases secondary to benzene exposure, it was likely that the veteran's hematologic disorder was related to Agent Orange exposure in Vietnam. She further concluded that it was very likely that the veteran's hematologic disorder was related to exposure to benzene in Vietnam. The Board must rely on the objective medical evidence when making its decision. see Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, given the veteran's presumed exposure to Agent Orange in service, and the recent 2007 VHA opinion, the evidentiary record is in equipoise regarding an existing relationship between the veteran's current myeloproliferative disorder with myelofibrosis and exposure to Agent Orange in service. Thus, the Board determines that 38 C.F.R. § 3.102 is for application in this instant case. Accordingly, entitlement to service connection is warranted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for myeloproliferative disorder with myelofibrosis is granted. ____________________________________________ C. Krasinski Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs