Citation Nr: 1303764	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  10-31 781	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Entitlement to service connection for thrombocythemia.  



REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs



ATTORNEY FOR THE BOARD

N. Snyder, Counsel



INTRODUCTION

The veteran served on active duty from January 1951 to December 1954.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Thrombocythemia did not have its onset in service and is not the result of a disease or injury incurred in service to include any in-service chemical exposure.  


CONCLUSION OF LAW

The criteria for service connection of thrombocythemia have not been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

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 a 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).

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection may also be established by chronicity and continuity of symptomatology.  See 38 C.F.R. § 3.303(b) (2011).  Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)).  "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  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, 1 Vet. App. at 54.

In this case, the service medical records, to include the December 1954 separation examination record, reflect no findings or history indicative of thrombocythemia.  A September 2002 VA treatment record indicates that the Veteran was diagnosed with thrombocythemia by a private hematologist five months earlier.  Subsequent records reflect continued treatment for thrombocythemia.  

The Veteran contends that thrombocythemia is the result of "heavy exposure to solvents in his everyday duties as an aircraft mechanic in the military."  His service personnel records confirm that he served as an aircraft mechanic and an air crewman in service.

On a January 2009 form presented to a VA oncologist and hematologist by the Veteran's representative, the doctor checked a box indicating that the Veteran's diagnosis of essential thrombocythemia was "[m]ore likely than not a result of the veteran's military service."  No explanation or reason for this determination was provided.  The doctor indicated on the form that essential thrombocythemia equals or equates to essential thrombocytosis which equals or equates to myeloproliferative disorder.

In this regard, the Board notes that essential thrombocythemia is defined as "an uncommon disorder in which your body produces too many blood platelets (thrombocytes)."  http://www.mayoclinic.com/health/thrombocythemia/DS01087.  "The exact cause of essential thrombocythemia and similar conditions, known as myeloproliferative neoplasms, isn't known.  About half the people with the disorder have a mutation of the Janus kinase 2 (JAK2) gene.  Other gene mutations also have been linked to essential thrombocythemia."  Id. 

Thrombocytosis is defined as "a disorder in which your body produces too many platelets (thrombocytes), which play an important role in blood clotting."  http://www.mayoclinic.com/health/thrombocytosis/DS01088.  "When caused by a bone marrow disorder, thrombocytosis is called autonomous, primary or essential thrombocytosis or essential thrombocythemia."  Id.  

An excerpt about essential thrombocythemia from Merck Manuals Online Medical Library, printed in September 2009, is in the claims file.  With regard to etiology, the article provides that "[e]ssential thrombocythemia (ET) is a typically clonal abnormality of a multipotent hematopoietic stem cell."

In October 2009, another VA doctor reviewed the claims file and gave an opinion that, in this case, essential thrombocythemia was not related to any in-service chemical exposure.  The doctor indicated that essential thrombocythemia had not been shown to be caused by excessive exposure to chemicals and that, although it was "possible," there was nothing in the literature to support such a finding.  The doctor then indicated that the thrombocythemia is unrelated to any chemical exposure in service because the majority of thrombocythemia is found not to be related to chemical exposure.  

Service connection is not warranted for thrombocythemia.  Initially, the Board notes that no evidence suggests, nor does the Veteran contend, that thrombocythemia had its onset in service.  The service treatment records reflect no findings or history indicative of thrombocythemia, and the first evidence showing a diagnosis of it is dated in 2002, approximately 48 years after separation from service.  See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000).  Furthermore, although competent to do so, the Veteran has not reported any symptoms associated with thrombocythemia during or after service.  See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994).  Therefore, service connection cannot be granted based on continuity of symptomatology because (1) the condition was not "noted" during service and (2) there is no post service evidence of the same symptomatology.  Barr, 21 Vet. App. at 307 (citing Savage, 10 Vet. App. at 495-96).

Additionally, there is no persuasive evidence linking thrombocythemia to a disease or injury in service including exposure to chemicals.  In this regard, the January 2009 form on which a VA oncologist and hematologist checked a box indicating that essential thrombocythemia was "[m]ore likely than not a result of the veteran's military service" was not supported by a rationale, and therefore, it is without probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Furthermore, the Board finds the October 2009 opinion more persuasive and probative on the question of nexus to service because the October 2009 doctor, unlike the January 2009 doctor, addressed the contention of chemical exposure specifically and supported his opinion that thrombocythemia was not caused by such exposure with a reason, namely, that such a cause is not supported by the medical literature on the subject.  Although the October 2009 VA doctor stated that the "majority of thrombocythemia is found not to be related to chemical exposure" which might suggest that there is a minority of thrombocythemia which is related to chemical exposure, service connection cannot be granted based on a remote possibility.  38 C.F.R. § 3.102 (reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility).  Moreover, the doctor ultimately concluded that there was nothing in the medical literature to suggest a link between chemical exposure and thrombocythemia.  His opinion is consistent with the September 2009 excerpt about essential thrombocythemia from Merck Manuals Online Medical Library and with the definitions of the disorder from the Mayo Clinic, both of which indicate it is a disorder characterized by an abnormality of a stem cell and caused by gene mutations.  For these reasons, the Board finds the October 2009 VA doctor's opinion more probative and credible than the statement on the January 2009 form from the VA oncologist and hematologist.

With regard to the Veteran's contention that his thrombocythemia is related to chemical exposure in service, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder).  Similarly, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).

However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, thrombocythemia is not a condition capable of lay diagnosis or the type of condition that can be causally related to military service without medical evidence addressing the question.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  Rather, the medical evidence in this case reflects that it is a complicated disorder as yet little understood by the medical community.  Therefore, the Veteran's own contention that the disorder is caused by chemical exposure is not competent evidence as to its etiology.  Accordingly, the Board cannot assign his statement any probative weight.

For the reasons noted above, the Board concludes that the preponderance of the evidence is against the claim for service connection for thrombocythemia and the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The duty to notify was satisfied by a letter sent in February 2009.  The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision in November 2009.  

The duty to assist was also met in this case.  The service treatment and examination records are in the claims file.  A VA opinion was obtained in October 2009.  38 C.F.R. § 3.159(c)(4).  The VA opinion obtained is adequate:  it is predicated on a full reading of the medical records in the claims file, it considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a rationale for the opinion stated.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  All pertinent VA records have been obtained and associated with the file.  

The Board acknowledges that there appear to be outstanding private treatment records.  The Veteran was asked to send any medical reports in his possession or to submit a VA Form 21-4142, "Authorization and Consent to Release Information."  He did not provide any records, or information, about the private treatment.  The Veteran is responsible for providing pertinent evidence in his possession.  See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim.


ORDER

Service connection for thrombocythemia is denied.  



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



Department of Veterans Affairs