Citation Nr: 1318782 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-03 314A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic myelogenous leukemia, including as secondary to benzene exposure and herbicide exposure in service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from June 1972 to November 1974. This appeal to the Board of Veterans' Appeals (Board) is from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2009 and August 2010, the Board remanded the Veteran's claim. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The Veteran did not have active military service in Vietnam. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran was exposed to herbicides or benzene in service. 3. The Veteran does not have chronic myelogenous leukemia that is causally related to, or aggravated by, service. CONCLUSION OF LAW Chronic myelogenous leukemia is not related to active duty service nor may it be presumed to be related to exposure to herbicides or benzene. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for chronic myelogenous leukemia. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in July 2009 and August 2010, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to contact the Veteran in order to obtain clarification as to his claimed in-service exposure to benzene as well as schedule him for a VA examination and associate a report of the examination with his claims folder. The Veteran's claim was to then be readjudicated. Pursuant to the Board's remand instructions, the VA Appeals Management Center (AMC) contacted the Veteran via an August 2010 letter in order to obtain clarification as to the Veteran's claimed in-service benzene exposure. Furthermore, the Veteran was afforded a VA examination in March 2010 and a report of the examination was associated with his claims folder. The Veteran's chronic myelogenous leukemia claim was readjudicated via June 2010 and November 2011 supplemental statements of the case (SSOCs). Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in August 2005, and notice with respect to the effective-date element of the claim by a letter mailed in March 2006. Both letters were sent to the Veteran prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes the Veteran's service treatment records, the Veteran's statements, and private treatment records. Additionally, the Veteran was afforded a VA examination in March 2010. The VA examination report reflect that the examiner interviewed and examined the Veteran, reviewed his past medical history, reviewed his claims folder, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that in the Veteran's July 2005 claim, he indicated that he was exposed to "binzing" (benzene) in service as it was used to treat the film that he worked with as an Imagery Interpreter Specialist. The Veteran alleged that his leukemia is as a result of this exposure. This assertion was again raised in a May 2009 VA Form 646. Moreover, the Agency for Toxic Substance & Disease Registry indicates that benzene exposure has been linked to an elevated risk of acute myelogenous leukemia. http://www.atsdr.cdc.gov/. Therefore, pursuant to the August 2010 Board remand, the AOJ was directed to contact the Veteran in order to obtain clarification as to his claimed benzene exposure. In compliance with the August 2010 remand, in an August 2010 letter, the AMC requested that the Veteran provide clarification as to what activities he performed which exposed him to benzene, how frequently he performed these activities, and for what duration he performed these activities. Furthermore, if the Veteran was aware of the approximate quantity of benzene to which he was exposed, he was to include that information as well, with corroborating documentation, if available. As evidenced by the claims folder, the Veteran did not respond to the AMC's August 2010 letter. Although the absence of information pertaining to the Veteran's claimed benzene exposure is regrettable, the Board finds that VA adjudication of the appeal may go forward without this information because the Veteran had an obligation to assist VA in the development of his chronic myelogenous leukemia claim by providing clarification as to his claimed in-service benzene exposure. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. The Board's decision to not remand the appeal for a third time to obtain clarification as to the Veteran's claimed in-service benzene exposure is supported by the fact that it appears that the AMC made a sufficient attempt to obtain this information. The Board also notes that in July 2009, the Veteran's representative submitted a statement alleging that the Veteran was enrolled at the Montgomery VA Hospital on October 20, 1975. The Veteran requested that hospital records from 1975 through 1980 be obtained, as he believed they may show abnormal lab results that would support a diagnosis of leukemia. As such, pursuant to the July 2009 Board remand, in December 2009, the AOJ submitted a request to the Central Alabama VA Medical Center in order to obtain these outstanding treatment records. The Central Alabama VA Medical Center responded to the AOJ's request in January 2010 and reported that no records were available from 1975 to 1980. The AOJ notified the Veteran of the unavailability of these records in the June 2010 SSOC. Accordingly, the Board finds that further remand for these VA treatment records is not necessary as the AOJ made a sufficient attempt to locate these records. See Gobber, supra. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of an accredited representative. In his February 2007 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issue on appeal. Service connection for chronic myelogenous leukemia Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including leukemia, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order to show a 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 fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). In certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for the following disorders as related to exposure to herbicides: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; 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); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Although B-cell leukemias are disorders which may be presumed related to toxic herbicide exposure, the evidence does not indicate that the Veteran has been diagnosed with a B-cell leukemia, but rather chronic myelogenous leukemia, which is a separate and distinct disorder. See Dorland's Illustrated Medical Dictionary, p. 1041-42 (31st ed.) (2007). Moreover, the Secretary of Veterans Affairs has determined that there is no positive association between herbicide exposure and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). Presumptive service connection for a disorder listed under 38 C.F.R. § 3.309(e) as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met, which include a presumption of exposure to herbicides for Veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Veteran in this case did not serve in Vietnam or Korea, nor has he so contended; therefore, there is no presumption of exposure. As chronic myelogenous leukemia is not a listed presumptive disease, and as the Veteran did not serve in Vietnam or Korea, presumptive service connection is not warranted. However, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Specifically, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. This will be discussed below. The Veteran contends that his leukemia is related to his military service, to include exposure to herbicides and benzene. See, e.g., the Veteran's May 2009 VA Form 646. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. As to Hickson element (1), the competent and probative evidence of record documents diagnosis of chronic myelogenous leukemia. See, e.g., the March 2010 VA examination report. Hickson element (1) is therefore satisfied. Turning to crucial element (2), in-service incurrence of an injury or disease, the Veteran has indicated that he was exposed to "binzing" (benzene) in service as it was used to treat the film that he worked with as an Imagery Interpreter Specialist. The Veteran alleged that his leukemia is as a result of this exposure. This assertion was again raised in a May 2009 VA Form 646. At that time, he also contended that his leukemia is related to in-service herbicide exposure. The Board notes that the Veteran's DD 214 confirms his military occupational specialty as an Imagery Interpreter Specialist. However, the Board finds the Veteran's contentions to be lacking in probative value and are not credible. Crucially, his service treatment records, to include his May 1974 separation examination, indicate no suggestion of treatment for chronic myelogenous leukemia or exposure to benzene or herbicides. Additionally, the evidence of record does not indicate suggestion of treatment for chronic myelogenous leukemia until many years following the Veteran's discharge from service. The earliest document showing a history by the Veteran of being diagnosed with chronic myelogenous leukemia dating back to service is in September 2004. This is more than 25 years after his separation from service. Moreover, with regard to the Veteran's claimed in-service exposure to benzene and herbicides, the Board notes no report of either of these exposures until July 2005, which is more than 30 years following the Veteran's discharge from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]. The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran can competently testify about symptoms he experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran's history of chronic myelogenous leukemia since service and exposure to herbicides and benzene during service is not credible in light of both the lack of any post service treatment or complaints of chronic myelogenous leukemia until September 2004 or report of herbicide and benzene exposure until July 2005. Furthermore, with regard to the Veteran's claimed in-service exposure to benzene and herbicides, the Veteran did not report either of these exposures at the March 2010 VA examination. It strains credulity to the breaking point that if the Veteran was exposed to either benzene or herbicides in service as he now claims, he would have mentioned this exposure at the VA examination. The Board further notes that the Veteran misspelled benzene as "binzing" on his July 2005 claim for VA benefits, indicating that he did not use benzene during service to the extent that he claims. The Board reiterates that the Veteran was afforded an opportunity to provide clarification as to his claimed in-service exposure to benzene. Specifically, in an August 2010 letter, the AMC requested that the Veteran provide clarification as to what activities he performed which exposed him to benzene, how frequently he performed these activities, and for what duration he performed these activities. Additionally, if the Veteran was aware of the approximate quantity of benzene to which he was exposed, he was to include that information as well, with corroborating documentation, if available. As evidenced by the claims folder, the Veteran did not respond to the AMC's August 2010 letter. Accordingly, the Veteran's recent unsupported and self-serving statements concerning in-service development of chronic myelogenous leukemia from exposure to benzene and herbicides are at odds with the remainder of the record, which is devoid any indication that any injury or disease occurred during service or for more than 25 years thereafter. As such, the Veteran's statements are lacking credibility and probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no objective indication of an in-service diagnosis of chronic myelogenous leukemia or symptomatology attributed therewith or in-service injury. Element (2) is therefore not met, and the Veteran's claim fails on this basis. For the sake of completeness, the Board will discuss element (3), nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. There is no competent evidence of record that establishes a causal relationship between the Veteran's currently diagnosed chronic myelogenous leukemia and his military service. In the absence of in-service disease or injury, it would seem that such nexus opinion would be impossible. In this regard, the Board notes that the Veteran was afforded a VA examination in March 2010. The VA examiner documented the Veteran's medical history, to include a 1980 National Guard record that revealed a glucose-6-phosphate dehydrogenase (G6PD) deficiency. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with chronic myelogenous leukemia and concluded that it is less likely as not (less than 50/50 probability) that the Veteran's leukemia is in anyway related to his military service. The examiner's rationale for his conclusion was based on his finding of no evidence of chronic myelogenous leukemia during service. Additionally, he reported that chronic myelogenous leukemia occurs when something goes wrong in the genes, and usually there is presence of Philadelphia chromosome that creates a new gene that produces protein tyrosine kinase. Excess of this protein promotes blood cells to grow out of control as well as keep growing many diseased blood cells. Risk factors include older age, male sex, and exposure to radiation. The Board notes that the Veteran has not contended that he was exposed to radiation during military service. The March 2010 VA examination report appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. To the extent that the Veteran asserts that his chronic myelogenous leukemia is related to his military service, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Veteran's statements that he has chronic myelogenous leukemia that is due to service relates to an etiological question as to an internal, not directly observable disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning a relationship between his chronic myelogenous leukemia and military service are therefore not competent in this regard. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board notes that the Veteran appears to be contending that he has had chronic myelogenous leukemia continually since service. However, as mentioned above, the first postservice evidence of symptomatology associated with chronic myelogenous leukemia is the 1980 National Guard record that revealed a G6PD deficiency. This was more than 5 years after the Veteran left service in November 1974. Moreover, the first postservice evidence of complaint of or treatment for chronic myelogenous leukemia specifically is dated September 2004. See a private treatment record from S.W., M.D. dated September 2004. The Board finds that the Veteran's current statements regarding a continuity of chronic myelogenous leukemia symptomatology since service are not credible. In particular, the Board reiterates that chronic myelogenous leukemia was not diagnosed at the time of his service discharge. The Board also finds that the Veteran's report of in-service exposure to benzene and herbicides is not credible. Furthermore, his May 1974 separation examination from service as well as the March 2010 VA examination contradict any current assertion that his current chronic myelogenous leukemia was manifested during service. There is no competent medical evidence that the Veteran complained of or was treated for chronic myelogenous leukemia for many years after his separation from service. See Maxson, supra; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service. Therefore, continuity of symptomatology after service is not demonstrated. Accordingly, element (3) is not met, and the Veteran's claim also fails on this basis. The Board finally notes that the record does not reflect medical evidence showing any manifestations of chronic myelogenous leukemia during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints or findings of chronic myelogenous leukemia until September 2004 (more than 25 years after his separation from active service). As such, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for chronic myelogenous leukemia. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for chronic myelogenous leukemia, including as secondary to benzene exposure and herbicide exposure in service is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs