Citation Nr: 1318522 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-26 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic myelogenous leukemia (CML), claimed as due to exposure to herbicides, asbestos and other chemicals. REPRESENTATION Appellant represented by: Lisa Lee, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, FL. In December 2007, the Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing at the RO. A transcript of that hearing has been incorporated into the claims file. The issue on appeal was previously before the Board in May 2008 when the claim was denied. The Veteran appealed the Board's May 2008 decision to the United States Court of Appeals for Veterans Claims (the Court). In July 2009, the Court vacated the Board's May 2008 opinion and remanded it back to the Board for actions consistent with a joint motion for remand. In November 2010, the issue on appeal was again before the Board when it was remanded for additional evidentiary development. The requested development has been accomplished and the issue has been returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND In November 2003, the Veteran filed an original service connection claim for CML based on exposure to herbicides, including Agent Orange. The Veteran presented testimony at a travel Board hearing held in December 2007. He testified that the USS Harold J. Ellison was sent to Vietnam to provide gunpowder and nuclear support, and that while assigned to that vessel he served as the engineering officer in charge of the engine and boiler rooms, as well as being the refueling officer. The Veteran explained that, during the course of his duties, he was exposed to asbestos, fuels, benzene, and PCBs and radiation. In January 2008, the Veteran submitted a list of chemicals to which he believed he was exposed during his engineering duties aboard ship and shipyard duties, the chemicals included: asbestos, Agent Orange, battery acid, diesel fuels, dioxin, mercury, Navy Standard Fuel Oil, paints and solvents. A VA examination was conducted in May 2011. It was observed that the Veteran was diagnosed with CML in May 2003 and began treatment with gleevec in June 2003 resulting in complete remission. The Veteran opined that the CML was due to chemicals he was exposed to while on active duty. The examiner wrote that the Veteran was diagnosed with CML which was in complete remission. The examiner specifically opined that CML was not considered a B-cell leukemia. The opinion was based on his review of the medical literature, the medical records and his clinical experience. The examiner also opined that it was less likely than not that the Veteran's CML in remission was related to his active duty service to include Agent Orange exposure. The rationale was based on the examiner's review of the medical literature, the medical records and his clinical experience. The examiner wrote that radiation exposure is the only well described risk factor in the medical literature for CML. To date, there are no other proven risk factors. It was observed in particular that there is no data in the medical literature to support the notion that CML is linked to chemical exposure. It is not apparent if the examiner was only addressing the chemical which are included in Agent Orange or if the opinion was addressing all chemicals. In contrast to the report of the May 2011 VA examination is the opinion from a private oncologist which was promulgated in May 2012. In May 2012, a private oncologist observed that the Veteran was exposed to Agent Orange as well as Navy Standard Fuel Oil (NSFO) and other chemicals while on active duty. The physician wrote that there was no clear evidence of any chemicals or infections association with development of CML, although there has been data about the increased exposure to ionized radiation and the development of CML. Significantly, the oncologist observed that there was a tremendous amount of data linking or associating the exposure of benzene to the development of CML. The physician wrote that benzene and other carcinogenic compounds were contained in NSFO. The private physician opined that while there is no clear evidence that categorically confirms that exposure to Agent Orange and NSFO are linked to CML, it was at least as likely as not that the exposure of these two agents "may have" an effect on the neoplastic process in the development of CML. In November 2012, another examination report was prepared. The examiner opined that there was no reasonable possibility that the Veteran's CML resulted from radiation exposure during active duty. Significantly, the Board's review of the May 2011 examination report and the November 2012 addendum demonstrate that an additional medical opinion is required. In May 2011, the examiner noted that there was no evidence linking CML to exposure to Agent Orange but the examiner did not provide an opinion as to whether it could be due to exposure to NSFO which apparently includes benzene. The May 2012 letter from the private oncologist raises the issue of a possible link between exposure to benzene and the development of CML but this opinion was insufficient upon which to base a grant of service connection as the opinion is in speculative terms. However, the private opinion dues trigger VA's duty to assist the Veteran with the claim by suggesting that there is evidence linking CML to the Veteran's active duty service based on exposure to NSFO and benzene. The Board finds that a medical opinion should be obtained regarding whether it is at least as likely as not that the Veteran's exposure to NSFO was the genesis for the current CML. The examiner must address the medical literature cited by the private oncologist which might support the Veteran's claim. While this matter is on remand, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to present information/evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. For any attempts to obtain indentified evidence which are unsuccessful, VA must provide the Veteran with the proper notification as noted above. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for CML. Accordingly, this matter is hereby REMANDED to the RO for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. 3. After the development set out above has been completed to the extent possible, return the claims file to the VA examiner who prepared the May 2011 VA examination report and request that an addendum to the examination report be prepared which addresses the following: a.) The examiner should review the May 2012 letter from the private oncologist and the medical evidence cited therein and determine if this evidence changes the etiology opinion. The examiner should specifically indicate whether the additional evidence received warrants any change in his prior opinion as to the etiology of CML. Research should be conducted to determine if exposure to NSFO, to include the constitute element of benzene if appropriate, is etiologically linked to CML. Based on the review of the evidence in the claims file and the additional research directed above, the examiner must provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's exposure to chemicals during active duty, to include NSFO, was etiologically linked to his subsequent development of CML. A complete rationale to support the opinion must be provided. If any opinion cannot be provided without resort to speculation, the examiner should so state and then provide the rationale for why it was determined the requested opinion cannot be provided without resort to speculation. If the examiner who conducted the May 2011 VA examination is not available, or is unable to provide the requested opinion without first examining the Veteran, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All clinical findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's CML is etiologically linked to the Veteran's active duty service to include exposure to Agent Orange, NSFO and/or radiation. Appropriate research of pertinent medical literature should be conducted. The findings included in the May 2012 private medical opinion must be addressed. The examiner should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for service connection for CML in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).