Citation Nr: 0814027 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-25 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for chronic myeloid leukemia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to July 1970, and from November 1970 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied service connection for chronic myeloid leukemia. The veteran filed a timely appeal of this decision to the Board. In June 2006, the veteran, accompanied by his representative, testified at a hearing before the undersigned Acting Veterans Law Judge. After the hearing, the veteran submitted additional evidence to the Board, accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304 (2007). This evidence will be considered by the Board when reviewing the veteran's claim. FINDINGS OF FACT Chronic myeloid leukemia was not shown in service or for many years thereafter, nor is the condition shown to be linked to service or exposure to herbicides or ionizing radiation in service. CONCLUSION OF LAW Chronic myeloid leukemia was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1113, 1116, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(d),(e), 3.311 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in letters dated in October 2004, January 2005, May 2005, August 2005, and May 2006, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence he has in his possession that pertains to the claims. The May 2006 letter advised the veteran how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence associated with the claims file consists of the veteran's service records, post-service treatment records, records from the Social Security Administration, a response from the National Personnel Records Center (NPRC) regarding negative findings for radiation exposure in service, and statements submitted by the veteran and his representative in support of the claim. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The veteran claims service connection for a chronic myeloid leukemia which he asserts was incurred as a result of exposure to radiation or herbicides during military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service incurrence will be presumed for certain chronic diseases, including leukemia, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, the veteran does not contend, and the record does not indicate, that his chronic myeloid leukemia had its onset in service or within one year of service. Service connection requires medical evidence of a current disability; medical, or in some cases lay, evidence of in- service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The service medical records are negative for a diagnosis of chronic myeloid leukemia. The first medical evidence of chronic myeloid leukemia is dated in July 2004, more than thirty years after separation from service. The veteran asserts that he was exposed to Agent Orange and ionizing radiation while he was stationed in Korea from 1968 to 1970, and was exposed to electromagnetic waves and radiation while stationed in Berlin, Germany from 1970 to 1973. He asserts that while he was stationed in Germany, he spent most of his time in an underground bunker, where his mission was to intercept transmissions and communications. The veteran's service personnel records show that he was stationed in Korea from May 1969 to July 1970, where his primary military occupational specialty was as a personnel specialist, and was stationed in Berlin from January 1971 to November 1973, where his primary military occupational specialty was as a personnel records clerk, and he also worked as a clerk typist and courier. His service personnel records do not reflect that he served in the Republic of Vietnam during the Vietnam era. If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases are presumed to have been incurred in service, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e) (2007). Chronic myeloid leukemia is not among the listed conditions in this regulation. Id. Veterans who served in Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to be exposed to herbicides absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii) (2007). As the veteran's service personnel records do not reflect that he served in the Republic of Vietnam during the Vietnam era, he may not be presumed to have been exposed to herbicides on that basis. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). In this case, there is no indication in the record, other than the veteran's assertions, that he was exposed to herbicides during service, and there is no medical evidence linking his current chronic myeloid leukemia with in-service herbicide exposure. With respect to the veteran's assertions regarding exposure to ionizing radiation, the Board notes that such claims are governed by two separate regulations and each provides a separate and distinct basis for establishing service connection based on exposure to ionizing radiation. See 38 C.F.R. §§ 3.309, 3.311 (2007). However, neither of those regulations is applicable in this case. These regulations permit service connection for certain cancer types, including leukemia, for "radiation-exposed" veterans. However, a "radiation-exposed veteran" is defined as a veteran who was involved in a "radiation-risk activity" during military service. Regulations define "radiation-risk activities" to include: participation at atmospheric nuclear tests; being present at Hiroshima or Nagasaki during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309(d)(3) (2007). In the present case, the evidence of record does not reveal that the veteran meets any of the criteria to be considered a "radiation-exposed veteran" for purposes of service connection for his chronic myeloid leukemia under 38 C.F.R. § 3.309. However, 38 C.F.R. § 3.311(a)(1) provides that, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. Here, the record indicates that the veteran has been diagnosed with chronic myeloid leukemia, a radiogenic disease, and the veteran contends that he was exposed to various types of radiation. The RO therefore requested any available records from the NPRC concerning the veteran's asserted exposure to radiation, as required under 38 C.F.R. § 3.311(2)(iii). In November 2004, the NPRC responded that they had no documents or records of exposure to radiation regarding the veteran in their records. The RO indicated that the veteran was informed of this response. The Board finds that there is no corroborating proof that the veteran was exposed to ionizing radiation in service. In fact, the nature of the veteran's alleged exposure to radiation is not entirely clear. He essentially contends that he was exposed to radio waves or electromagnetic waves. Exposure to non-ionizing radiation is not covered by 38 C.F.R. §§ 3.309, 3.311. The Court has taken judicial notice that radar equipment emits microwave-type non-ionizing radiation which is not subject to review under the ionizing radiation statute and regulations. See Rucker v. Brown, 10 Vet. App. 67 (1997). Based on the foregoing, the Board concludes that the evidence does not support a conclusion that the veteran was exposed to ionizing radiation in service. As such, his chronic myeloid leukemia cannot be attributed to this cause. Although the veteran may not take advantage of 38 C.F.R. §§ 3.309(d) and 3.311, he may still establish entitlement to service connection if the evidence of record shows that the chronic myeloid leukemia is related to service, or manifest to a compensable degree within one year following discharge from service. See Combee, supra. In August 2006, the veteran submitted medical treatise information from the internet regarding medical studies of exposure to radiofrequency/microwave radiation, and exposure to electromagnetic radiation. The Board notes that, with regard to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the appellant is accompanied by two virtually identical opinions by private physicians. These physicians, J.D. Hudson, MD, and G. Spitzer, MD, noted that the veteran was diagnosed with chronic myeloid leukemia (CML) in July 2004, and that he gave a history of exposure to radio frequency/microwave radiation during his military service from 1970 to 1973 in Berlin. Dr. Hudson stated, "There is evidence to suggest a causal relationship between radio frequency/microwave radiation exposure and CML. Although I cannot document the exposure that he has reported, I can document that he has CML and that it is possible it developed from exposure to this type of radiation." Dr. Spitzer's statement noted that he too had no documentation of the veteran's reported exposure to radio frequency/microwave radiation, but indicated that he had CML and it was a "probable" development from exposure to that type of radiation. Although the opinions of Drs. Hudson and Spitzer are competent medical evidence, they are based on the veteran's report that he was exposed to radio frequency/microwave radiation during his military service. A review of the file shows no evidence, other than the veteran's assertions, that he was exposed to non-ionizing radiation of this type during service. Therefore, the Board concludes that these private medical opinions are based on an inaccurate factual premise and are not supported by the service personnel and medical records. Consequently, they are entitled to little probative weight. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). While the veteran believes that his chronic myeloid leukemia was caused by exposure to herbicides or radiation during service, he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As such, the veteran's opinion is insufficient to provide the requisite nexus between his chronic myeloid leukemia and herbicide or radiation exposure during service. The evidence against the veteran's claim includes his service personnel records and the medical reports of record. Although it is true that the veteran has chronic myeloid leukemia, the fact remains that it was initially demonstrated more than 30 years following the veteran's discharge from service. There is no evidence, other than the veteran's assertions, showing that he was exposed to herbicides, ionizing radiation, or non-ionizing radiation in service, and no medical evidence linking chronic myeloid leukemia to service other than the medical opinions based on a faulty factual premise. As such, after a review of all the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for chronic myeloid leukemia. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for chronic myeloid leukemia is denied ____________________________________________ C. L. WASSER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs