Citation Nr: 1322086 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-23 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for acute myelogenous leukemia (AML), claimed as due to herbicide exposure. 2. Entitlement to service connection for pericarditis, to include as secondary to AML. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to AML. 4. Entitlement to service connection for arthritis [also claimed as rheumatism], to include as secondary to AML. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1967 to September 1969. The Veteran served in Vietnam from September 1968 to September 1969. This matter is before the Board of Veterans' Appeals (the Board) on appeal of October 2006 and October 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. AML claim The RO previously denied the Veteran's service-connection claim for AML in October 1998, August 2001, March 2005, and August 2005 rating decisions. Although the Veteran disagreed with the RO's August 2005 decision and was furnished with a statement of the case (SOC) addressing this issue in August 2006, he did not perfect an appeal by filing a timely VA Form 9. [The Board notes in passing that the Veteran did in fact file a VA Form 9 in July 2007 that, in part, referenced the August 2006 SOC; however, such was filed well after the time period for an appeal had lapsed and did not perfect an appeal of the August 2005 rating decision.] The Veteran subsequently filed a request to reopen his previously-denied AML claim in February 2007. The RO denied this request in the above-referenced October 2007 rating decision. The Veteran disagreed and perfected a timely appeal as to that issue. In November 2009, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning whether the Veteran's AML is related to his military service, to include his presumed exposure to Agent Orange. In January 2010, the Board received the requested VHA opinion, which has been provided to the Veteran. In a May 2010 decision, the Board reopened and denied the Veteran's service-connection claim for AML. The Board also denied the Veteran's secondary service-connection claims for pericarditis, GERD, and arthritis/rheumatism. The Veteran subsequently appealed the Board's May 2010 decision to the United States Court of Appeals for Veterans Claims [the Court]. A Joint Motion for Remand was filed, which the Court granted in December 2010. In essence, the Joint Motion indicated that a remand was required so that the Veteran could be afforded an opportunity to have a hearing before a member of the Board. See the November 2010 Joint Motion for Remand, page 2. The Board notes that in the November 2010 Joint Motion, the parties only sought vacatur and remand of the Board's May 2010 decision to deny the Veteran's AML claim, and his claims for pericarditis, GERD and arthritis. The Joint Motion did not indicate any dissatisfaction on the part of either party as to the Board's May 2010 decision to reopen the Veteran's AML claim. As such, for the sake of economy, the Board incorporates the reasons and bases of its prior decision to reopen the Veteran's AML claim herein. Doing so in no way prejudices the Veteran, as such favorable action triggers the VA's duty to assist the Veteran with his claim, and enables the VA to adjudicate the claim on its merits. Pericarditis, GERD, and arthritis/rheumatism claims In October 2006, the RO denied the Veteran's service-connection claims for pericarditis, GERD, and arthritis/rheumatism. The Veteran disagreed with the RO's decisions and perfected an appeal as to each of these issues with a July 2007 VA Form 9. On the VA Form 9, which perfected the Veteran's appeal of his service-connection claims for pericarditis, GERD and arthritis, he requested to appear and testify at a personal hearing before the Board in Washington, DC. Significantly however, the Board did not schedule the Veteran for this hearing prior to denying his service-connection claims in May 2010. As noted above, the parties specifically referenced the Veteran's July 2007 unanswered hearing request in the November 2010 Joint Motion for Remand. Indeed, the parties moved that the Court remand the Veteran's case for the sole purpose of affording the Veteran an opportunity to have this hearing before the Board. See the November 2010 Joint Motion, page 2. After successfully persuading the Court to grant this Joint Motion, the Veteran's attorney promptly withdrew the Veteran's hearing request in a March 9, 2011 brief. There is nothing following this request to suggest that Veteran or his attorney has requested that the hearing be rescheduled. The Veteran's July 2007 hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). Within the same March 2011 letter which withdrew the claim for a requested hearing, the Veteran's attorney submitted additional evidence and argument in support of the Veteran's claim. Based on this additional argument and evidence, the Board remanded the Veteran's claims in April 2011 for additional evidentiary development and readjudication. In January 2012, the Board denied the Veteran's claim of entitlement to service connection for AML. In a subsequent April 2012 decision, the Board denied the Veteran's secondary service-connection claims. The Veteran appealed the January and April 2012 decisions to the Court. In an October 2012 Joint Motion, the Board's denial of entitlement to service connection for AML was vacated and remanded. The Joint Motion noted that the Board had not met its legal obligation to ensure that the RO complied with the directives issued in the April 2011 Board remand. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Joint Motion found that the Board's directive to the RO to contact the Veteran's "service organization and request any information it might have indicating how much exposure time" the Veteran had with Agent Orange and at what concentration levels was not completed. The Joint Motion noted that the RO instead issued a September 2011 Formal Finding of Unavailability of records documenting exposure levels of herbicides in Vietnam, and stated that "service personnel in Vietnam were not monitored for exposure to levels to herbicides (Agent Orange) especially if their primary duties did not involve frequent personal contact with the agents." The RO noted the Veteran serviced as a postal clerk with the MACV. In an October 2011 letter to the Veteran's representative, the RO noted that the U.S. Army, and all other branches of service, do not have records regarding individual amounts of exposure to herbicides in Vietnam. The Joint Motion found that the RO's determination was not in substantial compliance with the directive because it did not include contacting a service organization/service department or other entity for more information. The Joint Motion additionally vacated and remanded the secondary service connection claims as they are intertwined with the claim of entitlement to service connection with AML. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Here, the evidence of record shows that the Veteran service in the Republic of Vietnam from September 1969 to September 1969. According to his personnel records and DD 214, he served at the MCVA and CORDS as a mail and postal clerk during this service. A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). As such, the Veteran is presumed to have been exposed to herbicides, including Agent Orange, during his service in the Republic of Vietnam. The Veteran was diagnosed with AML in April 1995 subsequent to an abnormal blood smear. He contends that he developed AML due to his exposure to Agent Orange, and more specifically, due to the presence of benzene in Agent Orange. The preponderance of the medical literature and opinions of record affirm that benzene is causally related to AML. Additionally, information regarding Agent Orange chemical structure indicates that it contains benzene. Notably, the treatises and internet articles provided by the Veteran also indicate that benzene is contained in gasoline, in many manufacturing operations, in the air (both inside and outside) and in cigarettes. The medical records reveal the Veteran had a 25-pack year history of smoking. He indicated he quit in 1990, but continued to smoke an occasional cigarette. During treatment in July 2000, he reported to his private physician that he quit smoking in 1995. Thus, currently the evidence supports that the Veteran was diagnosed with AML in 1995, that he was exposed to Agent Orange during service, that benzene can cause AML, and that Agent Orange and numerous other agents (including naturally occurring agents in petroleum) contain benzene. In May 2005, a VA examiner noted that "the development of any malignant process is possible only with specific concentration of toxic product and exposure time." The examiner noted that information regarding his concentration and exposure time to Agent Orange was not documented in the claims file, and that there was not confirming epidemiological and statistical data [between Agent Orange exposure and AML]. Thus, the VA examiner was unable to provide a nexus opinion. The Board solicited an expert medical opinion from a VHA medical expert concerning whether the Veteran's current AML is a result of his active duty military service, to include exposure to Agent Orange. Cf. Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. The VHA medical expert, Dr. E.E., reviewed the Veteran's claims file in January 2010, and indicated that "the presence of a benzene ring in a compound does not automatically associate[] the compound with development of AML," and that "accumulated experience in the literature since the Veteran was exposed to dioxin the 1960's does not substantiate an association between AML and dioxin exposure." A website printout provided by the Veteran, entitled "Agent Orange files" noted that Agent Orange contains 1.98 parts per million of dioxin. And that dioxin "is a compound of two benzene rings, covalently bonded with oxygen molecules." As noted in the Introduction, the Court vacated the Board's January and April 2012 decisions and remanded the issues to the Board due to the Board's failure to ensure that the directives contained in the April 2011 remand were fulfilled. Specifically, the RO did not contact a service organization/department or other entity to determine if there exists any information regarding the concentration and exposure time the Veteran had to Agent Orange during his service in the Republic of Vietnam. Thus, the claims were jointly remanded solely on account of the RO's finding that concentration and exposure times to Agent Orange are generally known to be unavailable, as opposed to the RO seeking a statement from a service organization/department etc., regarding information on exposure amounts. On remand, the RO should seek such information from any appropriate resource. The Veteran's remaining secondary service connection claims are inextricably intertwined with the outcome of his claim of entitlement to service connection for AML. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The RO should address all claims upon remand. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran's service organization/department or other appropriate resource and request any information it might have indicating (a) how much exposure time the Veteran had with Agent Orange, and (b) at what concentration levels. If this information cannot be obtained, the service organization/department should explain why such information is not obtainable. If such information is not available, the RO should issue a new formal finding of unavailability and incorporate that finding in the Veteran's claims folder. Copies of all responses from the service organization/department, as well as a copy of any formal finding of unavailability should be provided to the Veteran's representative. 2. After undertaking any other development it deems necessary, the RO should review all the evidence of record and readjudicate the Veteran's service-connection claims (including secondary claims). If the claims are denied, in whole or in part, the RO should provide the Veteran and his attorney with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has 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). _________________________________________________ DAVID L. WIGHT 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).