Citation Nr: 1222883 Decision Date: 06/29/12 Archive Date: 07/10/12 DOCKET NO. 08-23 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for chronic lymphocytic leukemia (CLL). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from July 1963 to July 1966 and from December 1967 to January 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2007 and January 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2010, the Board remanded the appeal, then including the claim for service connection for peptic ulcer disease, to the RO, via the Appeals Management Center (AMC), for further development. In a November 2011 rating decision, the RO granted service connection for peptic ulcer disease. Thus, that issue is no longer before the Board. In February 2012, the Veteran submitted additional evidence to the RO which was received at the Board in June 2012. Although he did not waive RO review of this evidence, as it consists of arguments previously set forth and considered, the Board finds that neither a solicitation of a waiver nor a remand is needed as either would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In May 2012, the Veteran again submitted additional evidence to the RO which was received at the Board in June 2012. He waived RO review of this evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's CLL did not have its onset during active service or within one year thereafter, and it is not related to any incident of service, to include any exposure to benzene. CONCLUSION OF LAW The criteria for service connection for CLL have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act Before addressing the merits of the issue of entitlement to service connection for CLL, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in December 2005 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter predated the initial adjudication by the AOJ/RO in March 2007. The Board acknowledges that the Veteran was never informed of how VA determines disability ratings and effective dates with respect to this claim. However, as the decision herein denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard, 4 Vet. App. at 394. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Here, the Board notes that all available private medical records have been associated with the claims file. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. Thus, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In the October 2010 remand, the Board requested that the RO/AMC contact the appropriate agency and request information about the duties of the Veteran's military occupational specialty(ies) and whether he was exposed to benzene or any other hazardous or cancer-causing chemicals during his service, and then afford him a VA examination to ascertain the nature and etiology of his CLL. In January 2012, the AMC submitted a request to the Environmental Health Strategic Health Care Group. In January 2012, having received no reply, the AMC submitted a follow-up request and notified the Veteran of the situation and advised him that he may wish to request the records from the agency himself. To date, however, neither the agency nor the Veteran has submitted the records. In February 2012, the AMC made a formal finding of the unavailability of these records. Given the above, the Board finds that there has been substantial compliance with the October 2010 remand with respect to the information on the Veteran's exposure to benzene and that no further duty to assist in obtaining the above information is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). With respect to the examination, the Veteran underwent a VA examination in December 2011 and the report of that examination is responsive to the Board's request. Moreover, as the examiner provided an opinion on the premise that the Veteran had been exposed to benzene in service, the Veteran is not prejudiced by the above inability to confirm his exposure. See Bernard, 4 Vet. App. 384. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). If certain chronic diseases, such as leukemia, are manifested to a degree of 10 percent within one year after separation from service, such disorders may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). Service connection may be also granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999). The Veteran contends that his CLL was incurred during or as a result of service, to include as due to the frequent exposure to benzene while cleaning weapons and as an aircraft technician and quality assurance inspector. He further contends that he began to show early signs of CLL in service, as he reported that he had a high white blood cell count during service. Also of note, in an April 2007 statement, the Veteran stated that he did not even know he had CLL until it was found during treatment for a possible sinus infection. The Veteran's service personnel records show that his military occupational specialties included safety equipment mechanic, flight equipment mechanic, and aircraft safety mechanic. His latest DD Form 214 reflects that he served as an aircraft safety equipment mechanic for over 15 years. The Veteran's service treatment records show no complaints, findings, or diagnoses of CLL. Specifically, they do not show any high white blood cell counts. Post-service private treatment records reflect that the Veteran was diagnosed with CLL in August 2000 based on a high white blood cell count. In an October 2005 private treatment note, Dr. M. stated that a review of the VA hospital records revealed that the Veteran had a diagnosis of CLL from the early 1970s. In a July 2007 letter, Dr. M. clarified that the only reference in the VA medical records was a note dated January 2005 showing that the Veteran was a man with a history of CLL who has had an abnormal white blood cell count since the 1970s. Dr. M. stated that he has no other data to substantiate his earlier statement that the Veteran had a diagnosis of CLL from the 1970s. Initially, the Board notes that the Veteran does not allege, and the record does not show, that he was exposed to Agent Orange in service or that he served in the Republic of Vietnam during the Vietnam era. Thus, the provisions of 38 C.F.R. §§ 3.307 and 3.309 regarding presumptive service connection for CLL based on exposure to certain herbicide agents are not for application. The record also fails to show that his CLL was diagnosed, let alone manifested to a degree of 10 percent, within one year of separation from service. Thus, service connection is not warranted on a presumptive basis for a chronic disease. Notwithstanding the presumptive provisions, service connection may be established by showing that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113 and 1116, and 38 C.F.R. § 3.303. As indicated above, the Board finds that the Veteran's CLL did not have its onset during active service or within one year thereafter. The remaining question is whether his CLL is otherwise etiologically related to service, to include alleged exposure to benzene. In support of his claim, the Veteran has submitted medical treatise evidence suggesting a link between benzene exposure and the development of CLL. As indicated earlier, the Veteran's exposure to benzene in service could not be verified. However, even if the Board were to concede that he was exposed to benzene in service, his claim still fails. As the record contained medical treatise evidence of a possible link between exposure to benzene and the development of CLL, the Veteran was afforded a VA examination in December 2011. After a review of the claims file and examination of the Veteran, the examiner opined that the Veteran's CLL was not incurred in or caused by any event in service. The examiner explained that, although it is possible that benzene exposure increases the risk of CLL based on small case studies which have suggested a relationship, this has not been proven in large epidemiologic studies. In support of her opinion, the examiner provided excerpts from several research articles. The examiner also opined that the Veteran's reported low white blood cell count in service was due to a normal variant, which could be confirmed by reviewing the Veteran's pre-service medical records and laboratory results. The examiner acknowledged the conflicting evidence on whether benzene exposure increases the risk of CLL but reiterated that the relationship has not been proven in large case studies. The above opinion is the only competent medical opinion of record, and it is against the claim. In this regard, the Board observes that Dr. M. based his initial statement that the Veteran had a diagnosis of CLL from the early 1970s on very limited data and essentially retracted the statement in a follow-up letter, and Dr. M. does not otherwise link the CLL to service, to include any benzene exposure. As such, the Board finds that the Veteran's CLL is not related to service, to include any exposure to benzene. Here, the Board observes that there was an error in the prior remand with respect to the examination request. The Board had stated that the Veteran had reported having a low white blood cell count in service and that this was indicative of CLL. As noted above, however, the Veteran had actually contended that he had a high white blood cell count. As it stands, however, the Board had requested that the examiner discuss whether the Veteran's report of exposure to benzene and having a low white blood cell count in service is consistent with his documented military occupational specialties and the service treatment records. Nevertheless, without documentation of a high white blood cell count in service, the Board finds that an opinion on the matter is not critical to the claim as the evidence of record shows that a high white blood cell count was first documented in August 2000 many years after service. The Board finds that the examination report is otherwise more than adequate. With respect to the Veteran's contention that he was told that he had an abnormally high white blood cell count in service while being treated for a sebaceous cyst on the right lower eyelid, the service treatment records document this visit but not the high white blood cell count. Moreover, in a January 2007 letter, the Veteran stated that he had been told by his Naval hospital physician that the abnormally high count was possibly due to the bump below his eye, thus negating his contention that it was due to CLL. Furthermore, the Board reiterates that the service treatment records simply fail to show the reported high white blood cell count. The Board notes the assertion by the Veteran's representative in the May 2012 statement that the examiner did not provide an adequate rationale for her opinion. However, as indicated above, she provided an adequate rationale that was supported by a review of the medical literature. Similarly, in a May 2012 statement, the Veteran asserted that the opinion is inadequate because the examiner was not informed of his exposure to benzene in service due to the lack of response from the Environmental Health Strategic Health Care Group. However, as indicated above, the examiner's opinion is premised on the Veteran's exposure to benzene in service. Thus, the lack of response from the Environmental Health Strategic Health Care Group does not detract from the adequacy of the opinion. The Board notes that the Veteran is competent to give evidence about observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. In this case, the Veteran has expressed his belief that his CLL had its onset in service and is due to exposure to benzene during service. However, the record dates the diagnosis of his CLL to well after discharge from service, the Veteran has stated that he did not even know he had CLL when it was diagnosed, and the question of causation in this case extends beyond an immediately observable cause-and-effect relationship. As such, he is not competent to address etiology in the present case. Regarding the submitted medical articles or treatises, the Board observes that they can provide important support when combined with an opinion of a medical professional if they discuss 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); Wallin v. West, 11 Vet. App. 509 (1998). In this case, the Veteran has not provided a medical opinion linking his CLL to service. Standing alone, the medical articles or treatises are simply too general to make a causal link between his CLL and service that is more than speculative in nature. In conclusion, service connection for CLL is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for CLL is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs