Citation Nr: 1007175 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-39 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for acute myolegenous leukemia (AML), to include as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Daniel S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 through February 1971. The Veteran's service included duty in Vietnam from July 1969 through July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The claims file has since been transferred to the RO in Indianapolis, Indiana for further handling. In his November 2007 substantive appeal, the Veteran contended that he is experiencing arthritis, joint and muscle pain, bronchiecstasis, and a nerve disorder, all reportedly secondary to herbicide exposure during service. These claims are referred to the RO for its consideration. FINDING OF FACT The Veteran's AML was not chronic in service; was not continuous after separation after service; did not manifest within one year from separation from service; and has not been shown to be etiologically related to any in-service injury, illness, or disease, including in-service exposure to herbicides. CONCLUSION OF LAW The Veteran's AML was not incurred in or aggravated by service, nor may it be presumed to have been. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including leukemia, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (beginning on January 9, 1962 and ending on May 7, 1975) 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 U.S.C.A. § 3.307(a)(6)(iii). In such cases, service connection may be granted on a presumptive basis for the diseases listed under 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.307(a)(6)(ii). II. Analysis In this case, the Veteran's service treatment records do not reflect any in-service treatment or diagnosis of leukemia. Post-service hospitalization records reflect that the Veteran was first diagnosed with AML in February 2006, approximately 35 years after his discharge from active duty service. Neither these hospitalization records nor follow-up treatment records through August 2006 express any opinions relating the Veteran's AML to his active duty service. Records obtained from the Social Security Administration (SSA) are largely duplicative of previous post-service treatment records obtained via release. To the extent that new treatment records were obtained via SSA, these records also do not contain any opinions etiologically relating the Veteran's AML to service, nor do they indicate this disease within one year from his discharge from service. The Board is cognizant that the Veteran was awarded the Combat Infantryman Badge in September 1969 for his participation in armed ground conflict. Under 38 U.S.C.A. § 1154(b), where a veteran has engaged the enemy in combat during service, satisfactory lay evidence or other evidence that an injury or illness was incurred or aggravated in combat shall be accepted as sufficient proof of service connection, even where there is no official record of such incurrence or aggravation, if the disability is consistent with the circumstances, conditions, or hardships of such service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); see also Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). If such evidence is presented, a presumption of service connection is created that may be rebutted by clear and convincing evidence disproving the in-service incurrence or aggravation. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Nonetheless, the Board finds that the Veteran's currently diagnosed AML is not consistent with the circumstances, conditions, or hardships of combat. As such, the Veteran's AML may not be presumed to have been incurred during service by virtue of his combat experience. Under the circumstances, the evidence in the claims file indicates that the Veteran's AML was first diagnosed 35 years after his discharge from service, and does not reflect onset within one year from his discharge. Accordingly, service connection may not be presumed under 38 C.F.R. §§ 3.307 and 3.309. The Board recognizes that service personnel records and DD Form 214 reflect that the Veteran served in Vietnam from July 1969 through July 1970. In his November 2007 substantive appeal, the Veteran asserted that he was "exposed, soaked, and engulfed" by Agent Orange during his active duty service. Under 38 U.S.C.A. § 3.307(a)(6)(iii), the Veteran may be presumed to have been exposed to herbicides by virtue of his service in Vietnam. Nonetheless, AML has not been recognized under 38 C.F.R. § 3.309(e) as a disease for which herbicide exposure may give rise to presumptive service connection. As previously noted, the post-service treatment records do not express any opinions relating the Veteran's AML to his active duty service or to herbicide exposure during service. Notwithstanding the Veteran's contentions that his AML was caused by herbicide exposure during service, the United States Court of Appeals for Veterans Claims (Court) has held that service connection may not be predicated on lay assertions of medical causation. See Grottveit, 5 Vet. App. at 92-93 (1993). In the present case, the Veteran has not been shown to possess the requisite medical training, expertise or credentials necessary to render either a diagnosis or a competent opinion as to medical causation for his diagnosed AML. Accordingly, his lay opinion does not constitute competent medical evidence and lacks probative value as to the matter of medical causation. See Espiritu, 2 Vet. App. 482 (1992) (holding a veteran is not competent to offer opinions on medical diagnosis or causation). The Board notes that the Veteran has not asserted that his AML manifested either during service or within a short period thereafter, nor has he stated that his symptoms related to AML have continued since service. Based upon the foregoing, the Board finds that the Veteran is not entitled to service connection for AML, either by a direct basis or secondarily due to herbicide exposure. The Veteran's AML also cannot be presumptively service-connected to his active duty service. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for throat cancer, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 38 C.F.R. § 3.159 was revised, effective as of May 30, 2008. 73 Fed. Reg. 23,353-23,356 (April 30, 2008). The final rule, among other changes, removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in his or her possession that pertains to the claim. In the present case, the Veteran was notified of the information and evidence needed to substantiate and complete a claim for service connection for AML in an August 2006 notice letter. In that letter, the Veteran was also notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate a claim. The Veteran's service treatment records, service personnel records, identified private treatment records, and Social Security records have been obtained. The Board notes that the Veteran has not been provided a VA examination to assess the etiology of his AML. Under 38 U.S.C.A. § 5103A(d), a VA medical examination is to be afforded where such an examination "is necessary to make a decision on the claim." A VA examination is "necessary" where the evidence, after taking into consideration all information and lay or medical evidence: (1) contains competent evidence that the veteran has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the veteran's active military, naval, or air service; and (3) does not contain sufficient medical evidence for VA to make a decision on the claim. In this case, the record on appeal does not contain any competent medical opinions which relate the Veteran's AML to any in-service injury, illness, or event. The evidence shows that the Veteran's AML was first diagnosed 35 years after his discharge from service, and the Veteran has not contended that his AML has continued since service or a short time thereafter. Under the circumstances, a VA examination to assess the nature and etiology of his AML is not "necessary." Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER Service connection for AML, to include as secondary to exposure to herbicides, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs