Citation Nr: 1325728 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-05 465 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for chronic myeloid leukemia (CML). ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1962 to May 1966. This claim comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service connection for CML was denied therein. The Veteran appealed this determination. Subsequently, jurisdiction was transferred to the RO in Cleveland, Ohio. In June 2011, the Board denied service connection for CML. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Joint Motion for Remand (JMR), his counsel and counsel for VA's Secretary requested that the Board's decision be set aside. An Order granting the JMR was issued by the Court later that month. This claim thus was remanded to the Board for development consistent with the JMR. The Board conceded the point such development pertained to in April 2013. It accordingly was unnecessary to undertake it. Other development, however, has been undertaken. Based on review of the Veteran's claims file in addition to his Virtual VA "eFolder," which will not be mentioned further as it does not contain any pertinent evidence or information, this claim is now ripe for adjudication. FINDING OF FACT The evidence is in relative equipoise regarding whether or not the Veteran's CML is related to his exposure to an herbicide agent such as Agent Orange during service. CONCLUSION OF LAW The criteria for entitlement to service connection for CML have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating entitlement to VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159. Discussion of these duties is not necessary because service connection for CML is granted herein. It follows that any errors committed regarding these duties were harmless. II. Service Connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a); 38 U.S.C.A. §§ 1110, 1131. To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303. Service connection also may be established for any disease diagnosed after discharge when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Leukemia is a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. Id. Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). If certain requirements are met, service connection is presumed for chronic diseases and diseases associated with exposure to an herbicide agent. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A requirement for both is that service must have been for 90 days or more either during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). With respect to diseases associated with exposure to an herbicide agent, exposure during service is required. Such exposure exists if there was service in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Lastly, the chronic disease or disease associated with exposure to an herbicide agent must be manifested within a particular time period. Manifestation of a chronic disease, though not necessarily diagnosis, also must be to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2-3), (c). Manifestation of all chronic B-cell leukemias, which have been associated with exposure to an herbicide agent, must be to a compensable degree at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease or disease associated with exposure to an herbicide agent must be taken into consideration even if the aforementioned requirements are met. 38 C.F.R. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d) , 3.309(a). Where service connection cannot be presumed, service connection still may be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997); McCartt v. West, 12 Vet. App. 164 (1999). This includes as due to exposure to an herbicide agent. The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, any reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The claimant is given the benefit of the doubt, in other words. Thus, the claimant prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board finds that service connection for CML is warranted. There can be no valid claim if there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the instant claim in August 2007. His VA and private treatment records show that he was diagnosed with CML in early 2002. As such, it is undisputed that CML is a current disability. Also undisputed is that the Veteran served for more than 90 days after December 31, 1946. Indeed, he served for over four years in the 1960's. Yet service connection cannot be presumed for CML as a chronic disease since it did not manifest within his first post-service year. The first diagnosis in early 2002 equates to over 35 years following the Veteran's May 1966 separation from service. There is no indication that he had CML by May 1967 though it remained undiagnosed for so many years thereafter. The Veteran's service treatment records are silent with respect to CML. It was not shown or even noted during service, in other words. It follows that service connection for CML as a chronic disease cannot be established on the basis of chronicity or continuity of symptomatology. Continuity of symptomatology also cannot be established in light of the aforementioned lack of a diagnosis or other indication that the Veteran manifested CML post-service. During the pendency of his claim, the Veteran has contended that he has CML as a result of exposure to herbicides such as Agent Orange during service. Service connection cannot be presumed for CML as a disease associated with exposure to an herbicide agent, however. Such association indeed has not been proven. Chronic B-cell leukemias have been associated with herbicide exposure, as noted above. It specifically has been determined that there is inadequate or insufficient evidence to determine whether there is an association between herbicide exposure and leukemias other than chronic B-cell leukemias such as CML. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 (Aug. 10, 2012). This determination was based on reports from the National Academy of Sciences, such as that submitted by the Veteran. Nevertheless, service connection can be established for CML on the basis of exposure to an herbicide agent such as Agent Orange during service if the Veteran is found to have been so exposed and if his CML is determined to be related thereto. One way to establish that he had herbicide exposure during service is to establish that he served in the RVN at some point, since all of his service was between January 9, 1962, and May 7, 1975. RVN service includes service in the waters offshore if there was duty or visitation in the RVN. 38 C.F.R. § 3.307(a)(6)(iii). VA's interpretation of this to mean that the Veteran must have been present on the land mass or "brown" inland waters of the RVN at some point during service has been upheld. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Board has no discretion and must comply with a Court order to direct additional development. Forcier v. Nicholson, 19 Vet. App. 414 (2006). Here, the Court granted the JMR which directed that the Board obtain additional development regarding whether or not the Veteran was exposed to an herbicide agent such as Agent Orange during service. No additional development is necessary, however. The Veteran indeed submitted positive evidence, namely deck logs, which obviate the need to seek such evidence. In combination with the other evidence, they establish that the Veteran was in the inland waters of the RVN on one occasion and was on the land mass of the RVN, albeit an island thereof, on another. In particular, service personnel records reveal that the Veteran served aboard the USS Leonard F. Mason from November 1963 to October 1964 and the USS Vance from November 1964 to April 1966. He contends that he had herbicide exposure only while aboard the USS Vance. This ship is included on VA's list of ships temporarily operated in the RVN's inland waterways. Specifically, deck logs show that it anchored at Qui Nhon Bay, which is not in open deep-water, on January 30, 1966. This is within the period the Veteran served aboard it. The deck logs further show that the USS Vance anchored off Hon Dau Island in three fathoms of water on March 9, 1966. J.B. indicated in a January 2009 statement that he and the Veteran both went ashore on that island then. J.B. is a lay person because there is no indication he has a medical background. He is competent in the aforementioned regard because this event would have been within his personal experience. Layno v. Brown, 6 Vet. App. 465 (1994). He is credible in this regard because there is no significant reason, such as interest, self-interest, bias, inconsistency, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor, to doubt him. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). Given these occasions, the Veteran is presumed to have been exposed to an herbicide agent such as Agent Orange during service. It follows that consideration of the other evidence submitted as proof in this regard is unnecessary. The Veteran clearly believes there is a relationship between herbicide exposure during service and his CML. Like J.B., and for the same reason, he is a lay person. A lay belief can sometimes be sufficient to prove nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the question of whether there exists a service relationship in this case falls outside the province of a lay person. It is a medical question. Of import in this regard are the complexities of CML and the number of years since the Veteran's service and therefore exposure to an herbicide agent. Only those with a medical background are competent where the determinative issue is one of medical causation. Jones v. West, 12 Vet. App. 460 (1999); Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372. Lacking this background, the Veteran' lacks competence to assert his belief in the form of an opinion. His credibility in this regard accordingly need not be addressed. Three medical opinions exist. In an October 2007 letter, Dr. P.S. noted the Veteran's CML diagnosis and exposure to Agent Orange and then opined that further investigation was needed because there might be a causal relationship between them. Use of the word might leaves open the possibility that the Veteran's CML is related to his herbicide exposure during service, but it also leaves open the possibility that his CML is not related to such exposure. In other words, the opinion does not arise to the level of at least as likely as not required. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bostain v. West, 11 Vet. App. 124 (1998); Goss v. Brown, 9 Vet. App. 109 (1996); Warren v. Brown, 6 Vet. App. 4 (1993); Beausoleil v. Brown, 8 Vet. App. 459 (1996); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Regarding the two remaining opinions, assessment factors include the qualifications and expertise of the examiner, access to the claims file or other pertinent evidence, the scope of the examination, the accuracy of the factual premise underlying the opinion, the rationale offered for it, and the degree of certainty provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Dr. A.M., who works in the hematology and oncology fields, accurately noted the Veteran's 2002 CML diagnosis and his exposure to an herbicide agent such as Agent Orange and then opined that "it is likely than not" that his CML is due to such exposure in a December 2009 letter. Dr. M.A. a specialist in hematology and oncology, responded in a May 2013 letter to the Board's April 2013 letter setting forth the aforementioned accurate facts and requesting another opinion that determining whether the Veteran's CML is related to his exposure to Agent Orange during service would require speculation. Dr. M.A. later gave the "impression" that the Veteran's CML is not due to his herbicide exposure during service but conceded that it is "certainly possible." Dr. A.M.'s opinion is interpreted as an opinion that the Veteran's CML is just as likely due to his herbicide exposure during service as it is due to something else. The Board previously discredited the opinion because there is no indication it was based on a review of the claims file and it was not supported by a rationale. Now, the Board points out that the lack of claims file review does not automatically render a medical opinion inadequate. Nieves-Rodriguez, 22 Vet. App. at 295; D'Aries v. Peake, 22 Vet. App. 97 (2008). This is especially true here where the review would have revealed little other than what was otherwise known to Dr. A.M. through examining the Veteran, likely repeatedly, in the course of treating him. The Board also points out that, though no explanation was provided, Dr. A.M. must have made the opinion based on applicable medical principles. That such principles were known to Dr. A.M. is undisputed given the background in hematology and oncology. An explanation is crucial. Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. 120. However, the opinion is somewhat persuasive given this inferred explanation. Dr. M.A.'s opinion was based on review the claims file as well as on an extensive review of pertinent medical literature. A rationale was supplied. Specifically, it was noted that the Veteran was diagnosed with CML over 35 years after his herbicide exposure during service. An aggressive progression and early onset, which were identified as indicative of diseases induced by chemical toxins, were noted to be absent. Median age of diagnosis of CML was reported to be 64, whereas the Veteran was diagnosed at age 60. One study showing a statistically significant rate of CML among farmers exposed to one of the ingredients of Agent Orange was discussed, as was the fact that the confidence interval for this finding was broad instead of narrow. Finally, another Board decision submitted by the Veteran in which the benefit sought was granted was analyzed. It was determined that that decision concerned chronic myelomonocytic leukemia rather than CML. The Board points out that while Dr. M.A. was reluctant to render an opinion, as indicated by the use of the word speculative, the opinion ultimately rendered was negative. This opinion is not very persuasive in light of that reluctance, the study referenced, and the following. As highlighted by Dr. M.A., the Veteran did not manifest CML at an early age. Yet he did manifest it earlier than most people do. A medical article associated with the claims file around March 2008 indicates that in CML, leukemia cells tend to build up over time such that many people do not have symptoms for a few years. Thus, the Veteran most likely had CML even earlier than when it was detected at age 60. It follows that one of the two characteristics of diseases induced by chemical toxins most likely exists to some degree. It further follows that a diagnosis could have been made less than 35 years following his exposure to an herbicide agent during service. In sum, a somewhat persuasive positive opinion exists along with a not very persuasive negative opinion. The possibility that the Veteran's CML is related to his herbicide exposure during service was acknowledged when the negative opinion was rendered. Everything taken together thus suggests that the evidence is in relative equipoise. As such, the final requirement to establish entitlement to service connection for CML, has been met with application of the benefit of the doubt. The Veteran therefore is granted service connection. ORDER Service connection for CML is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs