Citation Nr: 1306560	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO. 10-21 612	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for polycythemia vera, including as due to exposure to herbicide agents (Agent Orange). 


REPRESENTATION

Appellant represented by:	Leo D. Dougherty, Agent


ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active military duty from December 1965 to September 1969.

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

The Board in June 2011 remanded the claim for additional development, and it now returns to the Board for further review.


FINDINGS OF FACT

1. The weight of competent and probative evidence of record is against the Veteran having developed polycythemia vera in service, and is against polycythemia vera otherwise being causally related to service. 

2. The weight of competent and probative evidence of record is against either herbicide agents or other environmental causes in service having caused the Veteran's polycythemia vera. 

3. Polycythemia vera is a myeloproliferative disorder that is not a form of leukemia and is not a malignant tumor.


CONCLUSION OF LAW

The criteria for service connection for polycythemia vera are not met; service connection is not warranted. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1116(a)(2), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2012); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative (however, the Veteran in this case is pro se, or representing himself) of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, nor, as discussed herein, has the Board identified any. 

VA has fulfilled the above requirements in this case for the claims for service connection. A VCAA notice letter was sent in July 2008. This letter addressed the evidence necessary to support a claim for service connection prior to the RO's initial adjudication of the claim by the appealed January 2009 decision.. 

The VCAA letter informed the Veteran of the notice and duty-to-assist provisions of the VCAA, of the bases of review, and of the information and evidence necessary to substantiate the claims. He was also told by this letter that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained. The VCAA letter also provided Dingess-type notice as to potential downstream issues of disability rating and effective date. To whatever extent Dingess-type notice may have been deficient in this case, such deficiency would be harmless and moot, because the claim for service connection herein adjudicated is denied. 

The VCAA letter also requested that the Veteran advise of any VA and private medical sources of evidence pertinent to his claim, and that he provide necessary authorization to obtain those records. It also requested evidence and information about treatment after service, in support of the claim. Based on information provided by the Veteran, post-service treatment records were obtained from VA and private sources. Medical records from indicated sources were sought, and all records received were associated with the claims file. Service treatment records and service personnel records were also obtained and associated with the claims file. 

The Veteran was appropriately informed of records obtained, including by the appealed rating decision and by a SOC and SSOC. He was also provided the appropriate opportunity to respond. He was thus, by implication or explicitly, also informed of records not obtained. He was also adequately informed of the importance of obtaining all relevant records, and of his ultimate responsibility to see that records are obtained in furtherance of his claims. 

While the Veteran in an August 2009 statement informed of treatment in years immediately following service, he also informed that the treating physician "is no longer in practice and deceased." The Veteran then referred the VA to records that were available, inclusive of those already associated with the claims file. The Veteran thus made clear that those prior records from the years immediately following service were unavailable. The Board finds no reasonable possibility of obtaining them, and hence concludes that efforts to obtain them would be futile and a waste of scarce VA resources. See 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478- 9 (1994).

In the absence of any report or indication of additional records not yet obtained relevant to the appealed claims, VA need not assist the Veteran in soliciting any additional records and need not seek to obtain any for association with the claims file prior to the Board's adjudication of the claim adjudicated herein. 

As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when a veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the veteran indicates that the claimed disability or symptoms may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

As discussed infra, the polycythemia vera the subject of appeal for which service connection is claimed including based on Agent Orange exposure is not subject to the applicable presumptions based on herbicide agents exposure. 38 U.S.C.A. § 1116(a)(2) ; 38 C.F.R. §§ 3.307, 3.309. Hence, there is no specific requirement for an Agent Orange Protocol Examination vis-à-vis polycythemia vera. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In this case, the Veteran was afforded a VA examination for compensation purposes in November 2011 addressing his claimed polycythemia vera, and he was also afforded two subsequent VHA examinations of his records with one VHA opinion provided in May 2012 with an addendum in October 2012, and a second provided in December 2012. As discussed infra, this examination and these VHA opinions addressed the medical questions of etiology including as related to service, with due consideration of past records, the Veteran's medical and self-reported lay history, and clinical findings. They sufficiently addressed, to the extent required for the Board's adjudication, the medical questions of diagnosis and causation as raised in this case for the Veteran's claimed polycythemia vera. The examiners supported their conclusions with analyses based on relevant evidence presented in this case, to include based on review of the record, inclusive past examination and clinical findings and lay statements, and clinical examination. The November 2011, May 2012, October 2012, and December 20102 VA medical reports and opinions provided with their relevant findings, analysis, and conclusions, in turn allow for the Board's adjudication inclusive of a weighing of these examinations and reports and opinions, with their findings and conclusions, against contrary evidence. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board further finds that these VA examinations and opinions, taken together with the balance of medical and non-medical evidence of record, provide sufficient detail and sufficient medical evidence and findings to allow for appropriate Board adjudication of the polycythemia vera claim adjudicated herein. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 

No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim adjudicated herein. 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); see also Quartuccio v. Principi, supra. 

Any VA development assistance duty under the VCAA to seek to obtain indicated pertinent records has been fulfilled. The Veteran has not presented any avenues of evidentiary development presenting a reasonable possibility of furthering the claim which the RO has not pursued by query. Hence, the case presents no reasonable possibility that additional evidentiary requests would further the claim being decided herein. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. 

The Veteran has addressed his claims by submitted statements. There has been no expressed indication that the Veteran desires a further opportunity to address his claim adjudicated herein. 

In summary, in this case, with regard to the service connection claim herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the service connection claim at issue on appeal. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). 

The requirements of the Board's June 2011 remand have been substantially fulfilled, by the AMC requesting the obtained November 2011 VA examination for compensation purposes, and by the Board subsequently obtaining the VHA opinion report in May 2012 with a supplemental opinion in October 2012, and the VHA opinion report in December 2012. The Veteran's representative in a June 2012 submission argued that the Veteran had not been examined by a specialist to ascertain the nature, extent, and etiology of any polycythemia vera, as was required by the Board's June 2011 remand. However, the Board accordingly obtained these VHA specialist opinions in May 2012, October 2012, and December 2012 prepared by appropriate specialists. VA physician Dr. F provided the opinion in May 2012 and an addendum opinion in October 2012; she is noted to practice in the field of hematology/oncology. VA Dr. L., who provided the opinion in December 2012, is also noted to practice in the field of hematology/oncology. In support of her opinion, Dr. F. sought a further specialized consultation with a physician whom she regarded as the foremost expert in myeloproliferative neoplasms, which include polycythemia vera. The November 2011 examination was followed by AMC issuance of a December 2011 SSOC. Following the VHA opinion letters, the Board in January 2013 provided the Veteran with notice and copies of the VHA opinions obtained, and afforded the Veteran 60 days to reply. The Veteran's authorized representative replied by a January 2013 letter responsive to the VHA opinion letters. The Board concludes that this development required by the June 2011 remand, in furtherance of the appealed claim, has been substantially fulfilled. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). 

In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claim on appeal herein adjudicated have been accomplished. 

II. Applicable Laws and Regulations Governing Claims for 
Service Connection, Including on First-Year-Post-Service and
Herbicide Agents Presumptive Bases

Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 

With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. 

Service connection may also be granted for any 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993).

Certain diseases, including malignant tumors and inclusive of leukemia, may be subject to service connection based on presumed incurrence in service if manifested to a compensable degree within one year subsequent to service. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307 , 3.309 (2012).

In addition to the regulations cited above, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam Era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The following diseases are associated with herbicide exposure for the purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). On October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116 , the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On March 25, 2010, the Secretary published in the Federal Register a proposed rule that would amend 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. 75 Fed. Reg. 14,391. On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish such presumptions. 75 Fed. Reg. 53,202. The final rule was effective August 31, 2010. 

In addition, the U.S. Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection for a non-presumptive disease, with evidence supporting a causal link to in-service exposures. Thus, his claim may be supported by submitted medical opinion evidence of a causal link between his herbicide agents exposure in service and the claimed disorder. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

While medical evidence may be required to address questions of diagnosis or causation specifically requiring medical expertise, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). 

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Id.; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

The Federal Circuit Court has held that "[l]ay 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 profession." Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. However, where the law and not the facts are dispositive upon a claim, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

According to 38 U.S.C.A. § 1154(a) , the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b) .

III. Claim for Service Connection for Polycythemia Vera 

The Veteran has contended, in effect, that he is entitled to service connection for polycythemia vera either on a direct basis based on development of polycythemia vera in service, on a direct basis as due to chemical exposures in service, on a presumptive basis based on herbicide agent exposure in service, or on a first-year-post-service presumptive basis based on manifestation of the disease within the first post-service year. 

The Board here first addresses the claims based on herbicide agent exposure in service and based on chemical exposures in service. The Board next addresses the claim on direct and first-year-post-service presumptive bases. The Board here finds service connection on basis of a first-year-post-service presumption or on the basis of a herbicide agents exposure presumption not for application, with polycythemia vera not among the listed disorders covered by those presumptions. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. 

The Veteran has submitted some medical opinion letters purporting to establish a nexus between herbicide agents and other chemical exposures in service and subsequent development of polycythemia vera. As noted, such a basis of service connection may be sustained by the weight of the evidence, even when a presumption of service connection is not applicable. Combee. However, medical studies or other evidence affording relevant support for these opinions has not been presented, and the Board ultimately finds that these opinions either do not credibly support service connection based on such in-service exposures, or only provide the barest of support in the Board's weighing of the evidence. The Board obtained two VHA physicians' opinions, informed by further consultation, to the effect that there is no known link between environmental exposures, inclusive of herbicide agents exposure, and development of polycythemia vera. In the absence of credible evidence to the contrary outweighing these informed medical opinions, the Board ultimately finds the weight of competent and credible evidence against any causal link between in-service exposures to chemicals including herbicide agents and subsequent development of polycythemia vera. 38 C.F.R. §§ 3.303, 3.307, 3.309. 

In the absence of credible lay statements or other evidence to provide more than the barest minimum of support for the presence of polycythemia vera with onset in service or a causal link to service, and with historical clinical evidence and informed VHA opinion evidence against in-service development of polycythemia vera or a causal link to service, the Board ultimately finds the preponderance of the evidence against the claim for service connection for polycythemia vera on the basis of either development of the chronic disorder in service or on the basis of continuity of symptoms from service or on any other direct basis. 38 C.F.R. § 3.303. 

The Veteran's service records reflect that he served in-country in Vietnam during the Vietnam Era, and hence herbicide agents exposure is conceded. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). However, because polycythemia vera is not among the listed disorders for which service connection may be established presumptively based on herbicide agents exposure, service connection on that presumptive basis must be denied as a matter of law. 38 C.F.R. § 3.309(e); Sabonis. This is inclusive of consideration of the new addition of B-cell leukemias to the list of presumptive disorders. Id. By a VHA medical opinion statement in May 2012 (detailed further below), Dr. F. specifically informed that polycythemia vera was not a B-cell leukemia. While the Veteran's representative appeared at one point to argue to the contrary, competent evidence to the contrary is not of record. The question of whether or not polycythemia vera is a B-cell leukemia is not a matter for lay interpretation. Jandreau. The Veteran is nonetheless entitled to support an association between conceded herbicide agents exposure in service and the claimed polycythemia vera, through medical evidence, on a non-presumptive basis. Combee. He may otherwise support his contentions of a causal link to service based on other chemical exposures in service, also on the basis of the weight of the evidence presented. 38 C.F.R. § 3.303. 

The Veteran submitted a March 2010 opinion letter by A.C., a registered nurse. The nurse expressed no expertise in the field of myeloproliferative disorders including polycythemia vera, though she did enumerate records from the claims file that she had reviewed, and stated, "Based on this review and my education, training, and experience as a Registered Nurse, I offer the following comments and opinions." It is unclear from the opinion letter how her training or experience as a nurse would afford her any requisite expertise, but she did provide some relevant statements. She also cited three articles which addressed, respectively, chemical exposures in Persian Gulf War veterans, a cluster of polycythemia vera cases in Western Pennsylvania, and a U.S. Environmental Protection Agency (EPA) data registry regarding malathion. The first article is clearly irrelevant as the Veteran did not serve in the Persian Gulf War. The second article is not relevant to alleged exposures in service, and the EPA registry data includes no information on polycythemia vera or other myeloproliferative neoplasms. Thus, the citations A.C. provides appear to indicate no basis for any association between the Veteran's in-service exposures and his subsequent development of polycythemia vera.

In her opinion letter, A.C. noted the Veteran's history of military service and his conceded exposure to herbicide agents from his service from December 1965 to September 1969. She also noted that he had been diagnosed with polycythemia vera in 2004. She further observed that malathion was a herbicide agent, and that "[a]ccording to the U.S. Environmental Protection Agency, there is suggestive evidence that malathion causes cancer." She thereby concluded, "Thus, it is my professional opinion that if [the Veteran] was exposed to malathion during service, it is at least as likely as not that his malathion exposure caused polycythemia vera."

The Board notes that while the Veteran's exposures to herbicide agents is conceded based on his service in Vietnam during the Vietnam Era, A.C.'s inferential leap from a suggestion of an association between exposure to malathion and development of "cancer" to a causal link to polycythemia vera is unsupportable on its face. There are myriad cancers, and applicable regulations have recognized potential associations identified by the National Academy of Sciences' Institute of Medicine (IOM) between exposure to herbicide agents in Vietnam and development of certain cancers, as enumerated within 38 C.F.R. § 3.309(e). (With regard to the diseases listed under 38 C.F.R. § 3.309(e) as being presumptively associated with exposure to herbicide agents, the decision of the Secretary of VA to add diseases to this list is based on a review of findings provided from scientific data furnished by the IOM, which studies the evidence and submits reports at two-year intervals concerning the association between exposure to herbicide agents and diseases suspected to be associated with such exposure. See, e.g., Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides (Eighth Biennial Update); Institute of Medicine ; Veterans and Herbicide agents: Update 2010 (National Academies Press 2011).) This list includes B-cell leukemias, but does not include polycythemia vera. Because A.C. has provided no reference or resource or medical basis for the conclusion that herbicide agent exposures were associated specifically with development polycythemia vera, and because of the absence of sufficient sophistication in her response to even differentiate types of cancers associated with herbicide agent exposures substantially undermines her credibility as an adequate expert to address the questions of causation or potential causation raised, the Board concludes that A.C.'s opinion regarding an association between the Veteran's herbicide agent exposures (or potential exposures) in service and subsequent development of polycythemia vera is entitled to very little or no weight in the present adjudication. 

The Veteran also submitted medical statements by Dr. M. in August 2009 and October 2011, which arrive at the opinion that polycythemia vera was at least as likely as not "caused or aggravated by his exposure to chemicals while serving in Vietnam." In these statements, Dr. M. explained that polycythemia vera was a myeloproliferative disorder and characterized it as an incurable but treatable cancer with symptoms including "night sweats, chills, chronic fatigue, malaise, itching of skin, headaches, and occasional bleeding." Dr. M. then opined that it was as likely as not that the Veteran's polycythemia vera was "caused by his exposure to chemicals in his service in Vietnam." The physician went on to note that the Veteran had been "historically exposed to malathion, diesel fuel, fuel oil, and other chemicals that are risk factors for his condition." He then contended there were "studies demonstrating a much higher incidence of polycythemia vera and other myeloproliferative disorders due to exposure to chemicals that he was exposed to." He added that herbicide agents was composed of chemicals including benzine, and that benzine was "known to increase the risk of several hematological conditions including polycythemia vera." 

However, Dr. M. did not cite or detail or even name any of these asserted studies or otherwise provided sources for his asserted information. Additionally, he went on to provide a qualifying statement that appears to substantially contradict these aforementioned assertions. Specifically, he stated, "Based on current available data, a causation of polycythemia vera is unclear." If causation is unclear based on current available data, then Dr. M.'s conclusion that polycythemia vera was at least as likely as not "caused or aggravated by his exposure to chemicals while serving in Vietnam" cannot be little more than speculation, and thus cannot serve to afford any significant support for service connection for polycythemia vera. See 38 C.F.R. § 3.102 (2012) (a finding of service connection may not be based on a resort to speculation or even remote possibility); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. app. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or be related to service, is too speculative to establish the presence of the claimed disorder or any such relationship). The physician has conceded that causes are unclear, and hence a conclusion of a 50 percent or greater likelihood of one or a limited number of causes cannot logically be supportable based on "current available data." Additionally, medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). In the absence of any citation of supporting studies or other support for the Dr. M.'s assertions, and in the face of a concession by Dr. M. that causation of polycythemia vera is unclear, the Board considers Dr. M.'s opinions to be exceedingly weak evidence in support of a causal link between chemical exposures in service and development of polycythemia vera. 

Additionally, Dr. M.'s opinion regarding aggravation makes even less sense, since, as the Veteran has conceded, his polycythemia vera was not diagnosed until 2004, or some 35 years after service. Aggravation of a disease cannot have occurred decades prior to onset of a disease. Dr. M.'s inclusion of such an assertion of aggravation further undermines the credibility of his opinion regarding a causal link to service, because it suggests a fog of speculation motivated by a desire to arrive at a pre-determined conclusion, rather than clarity driven by analysis based on actual medical science. Caluza.

Upon a VA examination for compensation purposes in November 2011 to address the Veteran's claimed polycythemia vera, the Veteran provided a history of being first diagnosed with polycythemia vera in 2004. He reported ongoing treatment since that time, while complaining of current fatigue and muscle and joint soreness. The November 2011 examiner, Dr. T., note that the polycythemia vera was active and stable with current symptoms, and that treatment consisted of antineoplastic chemotherapy. Dr. T. then opined that the Veteran's polycythemia vera was not at least as likely as not related to his exposure to herbicide agents in service. Dr. T. supported this opinion by noting that polycythemia vera is not a disease presumed to be caused by herbicide agents exposure, and that there was no evidence of "direct exposure" to chemical agents in service. Dr. T. observed that the Veteran had worked as an intelligence service agent in service primarily as an officer near the airport in Saigon. Dr. T. also noted that while the Veteran was seen in service on one occasion for a history of headache, chill, and vomiting, these were flu-like symptoms. Dr. T. concluded that there was no history chronicity of the polycythemia vera associated with service. The examiner also opined that the Veteran's smoking contributed to his polycythemia vera diagnosis. 

The Board observes that the obtained May 2012 and December 2012 VA medical opinions, as discussed below, to a degree contradict or render moot some medical arguments or conclusions of the November 2011 examiner, but not in a manner that benefits the claim. In particular, the May 2012 medical opinions, the October 2012 supplement to those opinions, and December 2012 medical opinions inform of no known cause of polycythemia vera and no known association between herbicide agents exposure and development of polycythemia vera. The absence of a known cause of polycythemia vera is contrary to the November 2011 examiner's opinion regarding the Veteran's smoking. As noted in Dr. F.'s discussion, addressed below, smoking may be associated with development of secondary polycythemia, which is a distinct disorder from primary polycythemia, otherwise known as polycythemia vera. Secondary polycythemia is not the subject of the claim on appeal, and is not indicated by the record to be a disorder suffered by the Veteran. 

Because the Board herein concludes, principally based on the credible May 2012, October 2012, and December 2012 VHA opinions obtained any in the absence of any significant contrary credible evidence, that the weight of the evidence preponderates against a causal link between herbicide agent exposure and development of polycythemia vera. Hence, the November 2011 examiner's supporting arguments regarding the level of potential herbicide agent exposure are moot to the medical conclusion that the Veteran's polycythemia vera was unrelated to herbicide agents exposure in service. 

In her May 2012 opinion, Dr. F. wrote that polycythemia vera is not a B cell leukemia but rather is a myeloid neoplasm, more specifically a myeloproliferative neoplasm. She added that there was no known cause of polycythemia vera, and that there was no evidence that either polycythemia vera or any other myeloproliferative neoplasm was related to herbicide agents. She stated that in her consultation, the noted foremost expert in myeloproliferative neoplasms stated that he knew of no link between herbicide agents and polycythemia vera. Dr. F. then opined that it was not at least as likely as not that the Veteran's herbicide agents exposure resulted in his polycythemia vera. 

In her October 2012 supplemental opinion statement, Dr. F. quoted relevant current information from the National Heart, Lung and Blood Institute web site. She thereby wrote that polycythemia vera, otherwise known as primary polycythemia, was mainly (in most cases) caused by a mutation in the JAK2 gene, which produces a protein that aids in the production of blood cells. She further wrote that primary polycythemia is distinguished from the distinct disorder secondary polycythemia. 

Dr. F. explained that secondary polycythemia was caused by long-term exposure to low oxygen, which caused the body to produced additional erythropoietin, which then resulted in excess production of red blood cells and thicker blood, as is characteristic of polycythemia. Secondary polycythemia, she noted, may be the result of long-term smoking, or long-term exposure to carbon monoxide, or prolonged exposure to high altitudes, or severe heart or lung disease, or, rarely, tumors that produce or release erythropoietin. Dr. F. then reiterated that there was no known association between polycythemia vera and exposure to "herbicide agents, malathion, diesel fuel or other contaminants."

As noted, a further VHA opinion, by Dr. L., was obtained in December 2012. Dr. L. opined that while an environmental cause of polycythemia vera is not known, an environmental cause is possible. The physician stated, "A review of the literature indicates in fact no known environmental cause for polycythemia vera." The examiner noted in most cases the disease was associated with a genetic mutation, but that "this is in general an acquired somatic mutation, so that an environmental cause is possible [....] Nonetheless there is not any data forthcoming on any environmental causation of polycythemia vera." Dr. L. concluded, cogently, "In summary, there is no reason to believe that this patient's polycythemia vera was caused by exposure to noxious agents during his tour of service in the armed forces." 

Regarding symptoms, Dr. L. noted, "the symptoms of polycythemia vera are protean and symptoms of fatigue and headaches may or may not be related although sweats and chills are not." The physician then replied in the negative to the possibility of assessing polycythemia vera based on past symptom presentation in service, informing, "We can make no comment as to whether the patient already had polycythemia vera during his active duty without actual access to complete blood counts during that period." Dr. L. further noted that there was "no known association between B cell malignancy and polycythemia vera." In contrast to the unsupported opinions of Dr. M., Dr. L. supported these opinions with a listing of five medical articles and studies. 

In a January 2013 statement, the Veteran's representative has argued, in effect, that because the December 2012 VHA physician could not rule out the presence of polycythemia vera in service, this established the possibility that polycythemia vera was present in service. The representative then argues that because development of polycythemia vera in service is possible, the Veteran should be afforded the benefit of the doubt and service connection should be granted for polycythemia vera. 

Certainly, anything is possible. However, the Veteran's representative's argument would lower the bar of what is sufficient to support a claim based on the benefit of the doubt rule far below what is permitted under VA law. The benefit of the doubt rule is applicable where there is an approximate balance of evidence for and against a claim. 38 U.S.C.A. § 5107(b); Gilbert. Here, by contrast, there is virtually no credible evidence supporting polycythemia vera being present in service, or supporting polycythemia vera being otherwise causally related service, or supporting a link between herbicide agents or other chemical exposures in service and subsequent development of polycythemia vera. Dr. L.'s letter merely supports the obvious point, effectively also made by the Veteran's representative, that if a claimed circumstance is not proved impossible, then there must remain some possibility of its occurrence. But a possibility is not the standard upon which the benefit of doubt rule depends. Rather, the appropriate standard is one of probability, not possibility, with the requirement of it being at least as likely as not (50 percent or greater probability) that the causal association is present. 38 U.S.C.A. § 5107(b); Gilbert. That level of probability of development of polycythemia vera in service is not achieved in this case, as discussed further below, and hence the benefit of doubt rule is inapplicable. Id.
The Veteran's representative contends that a record of treatment in service in February 1968 for symptoms including chills, headaches, nausea, and fatigue, support the presence of polycythemia vera in service, even while these symptoms may also be flu-like symptoms. While it is true that Dr. T. in the November 2011 VA examination report only confirmed that the symptoms noted in February 1968 were flu-like symptoms, a review of the pertinent service treatment record from February 1968 reveals that the Veteran was actually assessed with a "flu-like syndrome" (emphasis added) not merely an observation of "flu-like symptoms." Thus, the service treatment record reflects an assessed disease entity for the symptoms then manifested, and treatment based on this assessment. There is no indication in service records or post-service medical records that this flu-like syndrome or its symptoms were persistent following that acute episode. Hence, the service records simply do not support the proposition that these symptoms assessed as a flu-like syndrome were not such a syndrome but rather the chronic blood disorder polycythemia vera, or indeed any other chronic disorder. There is no indication from the clinical record that these symptoms were persistent in service or post service or that they otherwise were manifestations of a chronic condition. 

Nonetheless, the representative then makes the argumentative leap, based on some symptom overlay, that these February 1968 symptoms potentially represented polycythemia vera. For the above reasons - based on service records entirely consistent with apparently effective assessment and treatment for an acute flu-like syndrome in service and the absence of subsequent indication of any persistent or chronic symptoms from February 1968 onward - the Board finds that the representative's argument that this February 1968 record should be viewed as supporting the development of polycythemia vera in service is contrary to the weight of service and post-service evidence. 

As already noted, the VA examiner Dr. L. in December 2012 considered and rejected the possibility that the evidentiary record supported polycythemia vera having developed in service and persisted from service, instead noting that the presence of polycythemia vera in service could not be established without appropriate blood work from that time. No such blood work is available for review. 

The representative also asserts that the Veteran and is wife provided statements that the Veteran experienced symptoms including bleeding gums, flushed complexion, severe chills, and itchy skin, all within the first post-service year, and that these symptoms were all symptoms associated with polycythemia vera. This assertion is not an accurate representation of the actual statements by the Veteran and his wife, because they stated that these symptoms were present over multiple years following service, not all within the first post-service year. As the representative previously noted, the Veteran's and his wife's statements were dated in August 2009, and thus also subject to the Board's questioning the reliability of such recollections over so long an interval. 

The Board here quotes their comparatively brief statements to address these issues. The Veteran's August 2009 statement, in pertinent part, is as follows: 

During the first year after my separation from active duty I noticed night sweats periodically, and unusually heavy bleeding of my gums after normal brushing of my teeth.

It was not until a few years later that I noticed a certain amount of chronic fatigue and blushing of my skin or flushed complexion which I attributed to my light complexion. A few years later I sought medical advice from a local primary physician and was diagnosed with hypertension. 

The Veteran's wife's August 2009 statement is as follows:

During my husband[']s first 12 months of separation from active duty we became engaged to be married. Shortly after we were married I became aware and concerned that my husband was having severe night sweats to the point the bed sheets were soaked all the way to the mattress. He would have severe chills. These would occur once or twice a month every three or four months. My husband's skin would also become very itchy and blushed after taking a shower. These were the only things I can honestly remember at that time other than the fact that actual blood pressures results were always very high for someone so young.

The Veteran and his wife are competent to address these asserted past symptoms, as well as to address what occurred upon medical visits, including findings of elevated blood pressure. Jandreau. The Board also finds no reason to doubt, for purposes of the present adjudication, beyond some inaccuracy of recollection with the passage of time, the credibility of their accounts of symptoms encountered or of treatment obtained in the years immediately following service, and hence the Board finds their accounts reasonably credible. Caluza. However, while these statements do appear to support the presence of elevated blood pressure within the years following service as well as some additional symptoms, they do not ultimately serve to support the presence of polycythemia vera in service. Neither the Veteran nor his wife asserted that this more polycythemia vera-consistent-symptom-set began in service, as contrasted with the single treated episode of flu symptoms in February 1968. 

Even if the Veteran's and his wife's statements were sufficient to support a finding of onset of polycythemia vera in the first year or first few years immediately following service, and even if this were sufficient to establish that polycythemia vera became manifest within the first post-service year, service connection could still not be supported on that basis, because polycythemia vera is not included among the listed chronic diseases for which a Veteran is entitled to service connection based on manifestation to a compensable degree within the first year following service, on a first-year-post-service presumptive basis. 38 C.F.R. § 3.309(a) (2012). The clinical record establishes polycythemia vera as a blood disease, but not a leukemia or malignant tumor or any other disease or syndrome listed in 38 C.F.R. § 3.309(a). It is true that Dr. M. in an apparently careless, off-hand characterization called polycythemia vera a cancer: "Symptoms of this cancer include [....]" However, the balance of the record including detailed descriptions of polycythemia vera by Dr. F. in her October 2012 supplemental statement, do not support polycythemia vera being a malignant tumor or a leukemia, and hence do not support it being subject to first-year-post-service presumptions within 38 C.F.R. § 3.309(a). Dr. M. also implicitly conceded that polycythemia vera was not a leukemia, asserting in his August 2009 opinion letter that polycythemia vera was "considered to be a precursor to leukemia." (emphasis added) The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. § 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Hence, because the Veteran's polycythemia vera is not among the list of diseases for which a first-year-post-service presumption is established by VA law, the Board cannot allow for service connection for polycythemia vera on a first-year-post-service presumptive basis when the law and regulations provide for no such presumption. 38 C.F.R. § 3.309(a); Sabonis.

Addressing the questions of whether the asserted onset of symptoms in years immediately following service, taken together with the balance of the evidence of record, supports findings that the evidence preponderates in favor of the conclusion that polycythemia vera originated in service as a chronic disease or that it began in service and persisted from that time, the Board concludes that they do not support such findings, with the preponderance of the evidence against. 38 C.F.R. § 3.303. As the Veteran concedes, his polycythemia vera was not diagnosed until 2004. A review of obtained private medical records reveals that elevated platelet counts were first identified in a December 2003 hematology report, when elevated hemoglobin was also noted. A subsequent December 2003 private treatment record referencing those hematology findings informs, pertinently, as follows: 

ASSESSMENT: 1. Thrombocytosis / Ery[th]rocytosis - Incidentally found as part of the work-up for a recent admission for symptoms of palpitations. No clinical sign of thrombosis and no previous history of elevated platelet count. He comes to follow his PLT before proceeding with further work-up. Patient is a smoker although not smoking more than 5-7 cigarettes per day. CBC done today in the office showed persistent elevation of PLT count. The labs done at the hospital to assess the possibility of a reactive process failed to suggest any inflammatory or reactive process. This makes a primary hematologic disorder as the likely explanation for these findings. I strongly suspect a Myeloproliferative Disorder. [....]

This record and subsequent records thus inform of nascent findings supporting the presence of a blood disorder ultimately confirmed as polycythemia vera. The absence of a prior history of an elevated platelet count and the absence of any noted history of any previously identified blood disorder weigh heavily against the presence of polycythemia vera decades earlier in service. 

Weighing the presented evidence as a whole regarding the questions of onset of polycythemia vera as a chronic condition in service or persistence of polycythemia vera from service, the Board observes that the VA medical opinion of Dr. F. in December 2012, which is quite credible as being consistent with the balance of medical and lay evidence of record and supported by pertinent current clinical knowledge, is to the effect that past noted symptoms cannot support a finding of polycythemia vera in service, and that such an assessment could not be made without blood work from that time. While the submitted private medical opinion letters of A.C. and Dr. M. address causal links to chemical exposures in service, they do not address onset of polycythemia vera in service or persistence of polycythemia vera from service, and hence do not support the claim on those bases. (Dr. M.'s October 2011 letter does inform that symptoms of polycythemia vera as including "night sweats, chills, chronic fatigue, malaise, itching of skin, headaches, and occasional bleeding," whereas Dr. F. asserts that sweats and chills are not symptoms of the disease. Adjudication of the present claim does not depend upon resolution of that symptom ascription conflict.) The available clinical record points to onset of polycythemia vera around 2004, without hematological markers of the disease reflected as having been identified prior to 2003 and without the treatment record reflecting that the disease was even suspected prior to 2003. The lay statements of the Veteran and his wife ultimately do not serve to support polycythemia vera in service, and only somewhat support the possibility of polycythemia vera in years proximate to service. The Board accordingly concludes that the preponderance of competent and credible evidence of record is against polycythemia vera having developed as chronic condition in service or having persisted from service. 38 C.F.R. § 3.303. Once again, because the preponderance of the evidence is against the claim on this basis, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert. 


ORDER

Service connection for polycythemia vera is denied. 



______________________________________________
Alexandra P. Simpson
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs