Citation Nr: 1316231 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-05 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic myelogenous leukemia (CML) to include as due to herbicide exposure, and if so, whether service connection is warranted for the claimed disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board requested a medical expert opinion from the Veterans Health Administration (VHA) in January 2013. A response was received in March 2013. The Veteran and his representative were provided with a copy of the medical opinion in April 2013. The Veteran sent a response in May 2013 noting that he received the letter dated in April 2013 and he had no further information. The Veteran's representative waived the remainder of the 60 day period to respond. Accordingly, this issue is before the Board for appellate review. See 38. C.F.R. §§ 20.903, 20.1304(c) (2012). FINDINGS OF FACT 1. A rating decision dated in October 2002 denied the Veteran's service connection claim for CML and the Veteran did not perfect an appeal within the required time period. 2. Evidence associated with the claims file since the October 2002 rating decision was not of record at the time of the rating decision, and when considered in conjunction with the record as a whole, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for leukemia. 3. The evidence of record shows that the Veteran served in the Republic of Vietnam during the Vietnam Era and he has a current diagnosis of CML; however, CML is not a disease associated with exposure to certain herbicide agents as enumerated under 38 C.F.R. § 3.309(e). 4. The preponderance of the evidence shows that the Veteran was not diagnosed with CML in service or within one year after discharge from military service and the Veteran's CML is not otherwise related to military service to include herbicide exposure. CONCLUSIONS OF LAW 1. The October 2002 rating decision that denied entitlement to service connection for CML is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The evidence received subsequent to the October 2002 rating decision is new and material and the claim of entitlement to service connection for leukemia is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) and (c) (2012). 3. CML was not incurred in or aggravated by active service, nor may CML be presumed to have been so incurred or aggravated. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The duty to notify was satisfied prior to the initial AOJ decision through a letter dated in October 2006. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, Social Security disability records, a newspaper article, lay statements from the Veteran and his brother, two VA medical opinions dated in March 2011 and July 2011 and a VHA medical expert opinion dated in March 2013. The July 2011 VA opinion reflects that the examiner conducted a review of the Veteran's claims file and discussed the relevant evidence of record. Following the above, the examiner provided an explanation for his opinion that appears to be based on the evidence of record and general medical knowledge. Accordingly, the Board finds the July 2011 VA opinion is adequate for adjudication purposes. Thereafter, the Board requested a VHA medical expert opinion to provide an opinion on whether the Veteran's CML is related to herbicide exposure during military service. The Federal Circuit Court has upheld the Board's power to obtain such opinions and adjudicate the matter without RO review, provided that the claimant is provided a copy of the examination report and an opportunity to respond. See Disabled American Veterans, et.al, vs. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). The VHA medical expert opinion dated in March 2013 shows that the medical expert reviewed the Veteran's claims file to include the Veteran's private and VA treatment records. He provided an explanation for his opinion which appears to be based on the evidence of record, his medical expertise and medical studies and literature. The examiner adequately addressed the medical question raised by the Board in the January 2013 letter. Accordingly, the Board finds the VHA medical expert opinion is adequate for adjudication purposes. Furthermore, the Veteran has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the appellant is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. New and Material Evidence A rating decision dated in October 2002 denied the Veteran's claim of entitlement to service connection for chronic myelogenous leukemia (CML) on the basis that the Veteran's CML is not presumed to be related to herbicides, the available scientific and medical evidence shoes not support the conclusion that CML is associated with herbicide exposure and the condition did not occur during service or was aggravated by service. The relevant evidence of record at the time of the October 2002 rating decision consisted of service treatment records, private treatment records and lay statements by the Veteran. The Veteran did not perfect an appeal within the required time period. Therefore, the October 2002 rating decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). "New" evidence means existing evidence not previously submitted to VA. "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. 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. 38 C.F.R. § 3.156 (2012). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Competency of new evidence, however, is not presumed. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). VA received the Veteran's request to reopen his service connection claim for leukemia in July 2006. The relevant evidence of record received since the October 2002 rating decision includes lay statements from the Veteran and his twin brother, VA treatment records, Social Security Disability records, a March 2011 VA opinion, a July 2011 VA opinion and a March 2013 VHA medical expert opinion. The evidence received since the October 2002 rating decision is new in that it was not of record at the time of the October 2002 decision. A VA nurse practitioner in March 2011 determined that the Veteran had chronic lymphocytic leukemia. This medical opinion is neither cumulative nor redundant of the evidence of record in October 2002 and it raises a reasonable possibility of substantiating the Veteran's claim by addressing a missing element of the claim, i.e., a diagnosis of a disability that is presumed to be associated with exposure to herbicides. Based on the foregoing, the Board finds the new evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Such evidence is so significant that it must be considered in order to decide fairly the merits of the claim. Accordingly, the Veteran's claim of entitlement to service connection for leukemia is reopened. See 38 C.F.R. § 3.156(a). III. Merits of the Claim for Service Connection Having reopened the Veteran's claim, the Board must now determine whether the reopened claim of entitlement to service connection for CML may be granted on the merits, de novo. The Veteran will not be prejudiced by the Board action in reconsidering the matter as the Veteran and his representative have consistently presented argument on the merits and the RO considered the merits of the underlying claim during the course of the appeal. In addition, the Board has not considered any provisions of law that was not previously considered by the RO. The only evidence that was obtained by the Board after the RO considered the claim is the VHA opinion, a copy of which was provided to the Veteran and his representative. Bernard v. Brown, 4 Vet. App. 384 (1993); Cf. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In assessing the Veteran's service connection claim for leukemia, the Board must determine whether the veteran has the claimed disability. Post service private and VA treatment records show that the Veteran has a current diagnosis of chronic myelogenous leukemia. A March 2011 statement from a VA nurse practitioner determined that the Veteran has chronic lymphocytic leukemia. The Board finds that this determination is of low probative value as the nurse practitioner did not provide any explanation to include discussing the medical evidence of record in support of her diagnosis. The RO obtained another opinion in July 2011. The physician assistant noted that she reviewed the claims file and observed that multiple bone marrow biopsies, pathology reports and clinical medical records confirm a diagnosis of CML and not chronic lymphocytic leukemia as noted in the prior VA opinion. She determined that there were no objective medical findings in support of a diagnosis of chronic lymphocytic leukemia. She explained that chronic myelogenous leukemia is not a B cell/Hairy cell leukemia. It is a separate and distinct condition and does not share morphologic characteristics with B cell/Hairy cell leukemia. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran has a current diagnosis of chronic myelogenous leukemia. In regard to the Veteran's claim of leukemia as a result of exposure to Agent Orange, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in Section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran contends that he was exposed to Agent Orange while he was stationed in Vietnam. The Veteran's DD Form 214 reveals that the Veteran had service in Vietnam between June 1969 and June 1970. Thus, the evidence shows that the Veteran had service in the Republic of Vietnam during the applicable presumptive period and therefore exposure to an herbicide agent is conceded. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Nonetheless, CML is not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Accordingly, the Veteran's CML is not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing, in the alternative, service connection by way of proof of actual direct causation. Establishing service connection on a direct causation basis generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a), such as in this case leukemia. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be presumed for certain chronic diseases, such as in this case leukemia, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's service treatment records do not show treatment for or a diagnosis of CML during active military service. The first medical evidence that shows the Veteran has CML was in 1998, approximately 28 years after discharge from military service. As there is no evidence of CML shown in service or within one year of discharge from service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current CML and his active service. In this regard, the record contains a negative medical opinion. A VHA medical expert in March 2013 provided the opinion that it is not likely that the Veteran's herbicide exposure lead to the Veteran's diagnosis of CML. He explained that CML is a myeloproliferative cancer, not a B cell cancer. The medical expert noted that to date, exposure to ionizing radiation is the only known risk factor. Based on a review of the PubMed database, he concluded that there is no convincing evidence to support other environmental causes. He explained that the mechanisms attributed to herbicide agents causing health changes have included disruption of the endocrine system, oxidation stress and epigenetic changes. The medical expert also discussed that the Institute of Medicine lists CML in category 3 as having inadequate or insufficient evidence to determine an exposure link with Agent Orange. The most recent update available was in 2010. The medical expert determined that he could not find convincing evidence of an increased incidence of CML in Vietnam relative to other Asian counties; although he noted that data was limited. He concluded that there is insufficient evidence to link exposure to Agent Orange to the Veteran's case of CML and no convincing evidence to support a link between CML and exposure to herbicides in general. The Board finds that this opinion is persuasive and probative as the medical expert provided a clear explanation based on the evidence of record, medical knowledge and medical studies and literature. The Board notes that the Veteran contends that his CML is related to herbicide exposure. Specifically, he asserts that his identical twin brother, with whom he was raised and who was exposed to the same environmental factors as himself with the exception of herbicides, has not developed CML and therefore, his disease is due to herbicide exposure. Lay persons can provide an account of observable symptoms. See Jandreau, 492 F.2d at 1377. However, lay assertions regarding certain medical matters, such as an opinion whether CML is related to herbicide exposure in service, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's CML and exposure to herbicides during military service. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's CML is not related to active military service. As the preponderance of the evidence is against the Veteran's claim and the benefit of the doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to service connection for CML is not warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for CML is reopened, and the appeal is granted to that extent only. Entitlement to service connection for CML to include as due to herbicide exposure is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs