Citation Nr: 1309101 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-04 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic granulocytic leukemia, to include as due to ionizing radiation and Persian Gulf War service, and if so, whether service connection is warranted. WITNESSES AT HEARING ON APPEAL The Veteran and W. W. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1978 to January 1998. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Jackson, Mississippi, which reopened the claim for service connection for chronic leukemia and denied the claim on the merits. The case was remanded in September 2012 to allow the Veteran an opportunity to present testimony before a Veterans Law Judge (VLJ). In December 2012 the Veteran and W. W. testified before the undersigned VLJ at a video conference hearing; transcripts of the hearings are of record (Virtual VA electronic file). During the December 2012 pre-hearing conference, an accredited representative from the American Red Cross informed the undersigned VLJ that he had received correspondence from a private attorney which stated that the Veteran was represented by private counsel. According to the American Red Cross representative, the Veteran confirmed this to be true during the pre-hearing brief in December 2012. However, as demonstrated by the Veteran's testimony in the December 2012 hearing transcripts, the Veteran informed the undersigned VLJ that he was no longer represented by private counsel. It was also made clear to the Veteran that the American Red Cross would no longer be representing him. Upon inquiry from the undersigned, the Veteran testified that he wished to proceed with his testimony without representation. See hearing transcript at pg. 2. Accordingly, the Board finds that appellate review may proceed without prejudice to the Veteran. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006); Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. An unappealed March 2005 rating decision denied service connection for chronic granulocytic leukemia (chronic leukemia). 2. The evidence received since the March 2005 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for chronic leukemia. 3. The preponderance of the evidence shows that the Veteran's chronic leukemia was not present in service or until many years thereafter and is not related to service, including any claimed ionizing radiation or Persian Gulf War exposure. CONCLUSIONS OF LAW 1. The March 2005 rating decision that denied service connection for chronic leukemia became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been received to reopen service connection for chronic leukemia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran's chronic leukemia was not incurred in or aggravated by service, nor may it be presumed to have been incurred as a result of ionizing radiation or Gulf War exposure. 38 U.S.C.A. §§ 1110, 1112, 1117, 1118, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Inasmuch as the determination below constitutes a full grant (reopening) of the new and material evidence claim being addressed, there is no reason to explain how VA has fulfilled the VCAA duties to notify and assist as to that issue. In a timely letter dated March 2007, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection on the merits, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence, including service treatment records, VA examinations, VA treatment records, the Veteran's statements, and testimony from the December 2012 hearing. Additionally, the Veteran was afforded a VA medical examination in February 2011 with an addendum opinion in May 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion and findings obtained in this case are adequate. The VA nexus opinion provided considered all of the pertinent evidence of record, to include the statements of the Veteran, and provide a complete rationale for the opinions stated. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. New and Material Evidence Legal Criteria The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence Analysis In a March 2005 rating decision, the RO denied service connection for chronic leukemia because the evidence did not provide a link between the Veteran's chronic leukemia and service. The Veteran was provided notice of the decision and of his appellate rights, but he did not perfect a timely appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2012) (the regulations pertaining to the procedures for initiating and perfecting appeals to the Board of unfavorable RO determinations). Therefore, the March 2005 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The evidence of record at the time of the March 2005 rating decision included (1) service treatment records; (2) outpatient treatment records from the Jackson VAMC dated April 2003 to December 2004; (3) a January 2005 VA examination (wrist and lumbar spine); and (4) the Veteran's December 2004 claim for service connection. For evidence to be new and material, it would have some tendency to verify a link between the Veteran's chronic leukemia and service. In support of the current application to reopen service connection for chronic leukemia, the new evidence of record associated with the record since the March 2005 rating decision includes: (1) outpatient treatment records from the Jackson VAMC dated May 2003 to December 2010; (2) Atlanta VAMC treatment records dated December 2002 to May 2003; (3) December 2009 VA examination (scar); (4) February 2011 VA examination and May 2011 addendum (leukemia); and (5) transcript of the December 2012 hearing testimony. In an October 2012 statement and during the December 2012 hearing, the Veteran contended that chronic leukemia may have originated during service as evidenced by a request for a follow-up evaluation for anemia at his separation examination in 1997. The Veteran stated that he believed that his chronic leukemia could possibly have been diagnosed at this point, and not four years after service separation. After a review of all the evidence of record, lay and medical, and presuming the credibility of the Veteran's additional statements for the limited purpose of reopening a claim, the Board finds that the October 2012 statement and the December 2012 hearing transcript are new and material as they relate to an unestablished fact necessary to substantiate a claim for service connection for chronic leukemia regarding whether chronic leukemia may have originated during service. Accordingly, the evidence is new and material, and the claim for service connection for chronic granulocytic leukemia, to include as due to ionizing radiation and Persian Gulf War service will be reopened. See Cox v. Brown, 5 Vet. App. 95 (1993). The appeal is granted to this extent only. Reopening the claim does not end the inquiry; rather, consideration of the claim on the merits is now required. Because the appellant has had opportunity to address the merits of this claim, the Board may proceed with a final adjudication of the merits of the claim because there is no prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). The Veteran's claimed chronic leukemia is a "chronic disease" listed under 38 C.F.R. § 3.309(a) as a malignant tumor; therefore, 38 C.F.R. § 3.303(b) applies to that disability. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 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. With chronic disease 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed Veterans under 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee, 34 F.3d at 1043-44. Under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States Forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such interment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(3). Diseases presumptively service connected for radiation-exposed Veterans under the provisions of 38 C.F.R. § 3.309(d)(2) are: Leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gallbladder, primary liver cancer (except cirrhosis or hepatitis B as indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed Veteran" under 38 C.F.R. § 3.303(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) nonmalignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin's disease; (xxiii) prostate cancer; and (xxiv) any other cancer. Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. 67, 74; Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Analysis The Veteran contends that his currently diagnosed chronic leukemia is related to his Persian Gulf War exposure, to include exposure to high frequency antennas, radios, and other communications equipment. The Veteran further contends that his chronic leukemia could have possibly been diagnosed in service had a follow-up evaluation been conducted after his separation examination which noted a diagnosis for anemia microcytic hypochromic. The Veteran was stationed in Saudi Arabia between September 1990 and April 1991. The evidence shows that the Veteran was diagnosed with chronic granulocytic leukemia in 2002, and underwent immediate treatment. See VA treatment report dated April 2003 and hearing transcript at pg. 4. At the outset, service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 C.F.R. §§ 3.307, 3.309. Although the Veteran has a chronic disease subject to presumptive service connection (non-lymphocytic leukemia), the Veteran's chronic leukemia did not manifest to a compensable degree within one year following active service. Instead, the evidence of record does reflects that the Veteran did not manifest symptoms of chronic leukemia to a compensable degree within one year after service separation. In fact, the earliest evidence of record includes a diagnosed of chronic leukemia in December 2002, approximately four years after service separation. The Board further finds that, although the Veteran served in the Persian Gulf War, the medical evidence shows that the Veteran's illness has been attributed to a known clinical diagnosis; specifically chronic granulocytic leukemia with Philadelphia chromosome-positive. See February 2011 VA examination. Accordingly, service connection under 38 C.F.R. § 3.317 is not permitted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As noted above, service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods: (1) presumptive service connection under 38 C.F.R. § 3.309(d); (2) service connection of a "radiogenic disease" under 38 C.F.R. § 3.311; and (3) service connection may be granted under 38 C.F.R. § 3.303(d) and Combee when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. The Board will address each of these avenues in turn. Initially, the Board notes that leukemia (other than chronic lymphocytic leukemia) is included among the diseases for which presumptive service connection is warranted if it becomes manifested in a radiation-exposed Veteran as defined in 3.309(d)(3). As such, for presumptive service connection purposes, the issue is whether the Veteran is considered a radiation-exposed Veteran, as defined under 3.309(d)(3)(i). Here, the evidence does not show, and the Veteran does not contend that he participated in a radiation risk activity during service, as defined in 3.309(d)(3)(ii) (participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States Forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such interment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946). In this case, the Board finds that the Veteran did not participate in any tests involving the atmospheric detonation of a nuclear device and served in Saudi Arabia between 1990 and 1991. Consequently, service connection on a presumptive basis in not in order under 3.309(d). Having determined that presumptive service connection is not warranted, the Board will now turn to the direct question of whether the Veteran's chronic leukemia developed as a result of his Persian Gulf War exposure, to include exposure to high frequency antennas, radios, and other communications equipment during service. The provisions of 38 C.F.R. § 3.311 provide for development of claims based on a contention of exposure to ionizing radiation during active service and post-service development of a radiogenic disease. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation-exposed Veterans. In this case, the Veteran contends that his chronic leukemia was caused by exposure to microwaves emitted from telecommunication equipment such as high frequency antennas and radios. See December 2012 hearing transcript at pg. 3 and VA treatment note dated July 2003. Webster's II New College Dictionary (1999) defines "microwave" as an "electromagnetic wave ...the region between infrared and short-wave radio wavelengths." Further, "radio" is defined as "the use of electromagnetic waves in the radio frequency range to transmit or receive electric signals." "Antenna" is defined in the as a "metallic device for transmitting and receiving electromagnetic waves." Based on this information, the Board finds that electromagnetic frequency fields such as those emitted from radios and antennas are non-ionizing radiation. See Rucker, at 72-74 (Court has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation which is not subject to review under the ionizing radiation statute and regulations). Thus, as microwaves are electromagnetic forms of non-ionizing radiation, and there is no evidence in the record of ionizing radiation exposure, a referral for a determination of exposure and dose of ionizing radiation under 38 C.F.R. § 3.311 is not applicable. As such, the basic legal authority governing claims for service connection is applicable here. As discussed above, establishing service connection on a direct basis generally 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 claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). First, the Board finds that the Veteran's currently diagnosed leukemia was not chronic in service and has not been continuous since that time. The Veteran's service treatment records are negative for any treatment, symptoms or findings for leukemia. The October 1997 separation examination noted anemia; however, it did not note a diagnosis or treatment for leukemia and reported a normal physical examination. In fact, the first evidence of treatment or diagnosis for leukemia is in 2002, over four years after service separation in January 1998. The evidence of record does not reflect any continuous complaints, treatment, diagnosis, or symptomotology of leukemia between 1998 and 2002. For these reasons, the Board finds that the Veteran's leukemia was not chronic in service and has not been continuous since service separation. As for a nexus between the claimed in-service disease and the present disability, the Veteran has been treated by the Jackson VA medical center for several years, however, none of the VA treatment notes provide an opinion as to whether the Veteran's chronic leukemia is related to service. Moreover, after the December 2012 hearing, the record was held open for 60 days by the undersigned VLJ in order to afford the Veteran an opportunity to submit additional medical evidence or a medical opinion establishing a link between currently diagnosed chronic leukemia and service. To date, the Board finds that the only comprehensive medical evidence which clearly addresses whether there is a causal link between the Veteran's chronic leukemia and Gulf War service, has been negative. Specifically, the February 2011 VA examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. The examiner noted that the Veteran's report of exposure to all sorts of environmental hazards while stationed in Saudi Arabia, including burning oil fields. In the May 2011 VA addendum opinion the VA examiner stated that the Veteran's chronic leukemia is not caused by his Gulf War exposure based on the lack of medical evidence documentation that supports a cause and effect relationship for this condition and Gulf War exposure. In rendering its decision, the Board has considered the Veteran's contentions, however, his assertions are outside his area of competence. Laypersons such as the Veteran are generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). 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 (Fed. Cir. 2007). Here, to the extent that the Veteran contends that his currently diagnosed chronic leukemia is related to his active duty service in the Persian Gulf War, he is not competent to render such a medical nexus opinion regarding the more complex disability of chronic leukemia, a disability that requires specific clinical testing to even diagnose. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). This is not a case in which the Veteran's lay statements alone can serve to establish an association between his chronic leukemia and his military service. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, service connection for chronic granulocytic leukemia, to include as due to ionizing radiation and Persian Gulf War service is reopened. Service connection for chronic granulocytic leukemia, to include as due to ionizing radiation and Persian Gulf War service is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs