Citation Nr: 1327282 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-30 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for myeloproliferating disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2012, the Board remanded the claim for additional development. In December 2011, the Veteran testified during a videoconference hearing before the undersigned. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam. 2. The Veteran does not have myeloproliferating disorder that was caused or aggravated by his service. CONCLUSION OF LAW Myeloproliferating disorder was not caused or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran contends that his myeloproliferating disorder is due to exposure to Agent Orange during his service in Vietnam. He is shown to have served in Vietnam, and he is therefore presumed to have been exposed to herbicides in service. Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active 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 he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between Agent Orange and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. The Veteran's personnel records (DA Form 20) show that his awards include the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, the Purple Heart, and the Bronze Star with "V" device. Therefore, duty in the Republic of Vietnam is conceded for the purposes of the regulation governing the presumption of service connection for certain diseases due to herbicide exposure. See 38 C.F.R. §§ 3.307, 3.309. The Veteran's service treatment records do not show any relevant findings or diagnoses. The Veteran's separation examination report, dated in October 1968, does not contain any relevant findings or diagnoses. As for the post-service medical evidence, it includes records associated with Army Reserve duty, dated between 1988 and 1991, which do not contain any relevant findings or diagnoses. The other evidence consists of VA and non-VA reports, dated between 2007 and 2013. This evidence shows that the Veteran was diagnosed with myeloproliferating disorder in 2008, with notations of possible essential thrombocythemia. A January 2009 VA treatment note reflects a diagnosis of leukocytosis. In a September 2009 letter, Dr. E., a private physician, noted that the Veteran was exposed to Agent Orange in Vietnam and that he now has myeloproliferating disorder. Dr. E. states that it is possible that there may be an association between Agent Orange and the development of leukemia, stating that myeloproliferating disorder is a disease within the spectrum of blood diseases such as leukemia. An October 2011 private treatment note contains a diagnosis of myeloproliferating disorder manifesting in mild anemia, mild leukocytosis, and mild splenomegaly. A hematologic and lymphatic conditions Disability Benefits Questionnaire (DBQ), dated in March 2012, shows that the examiner, a nurse practitioner (D.L.), stated that the Veteran's claims file had been reviewed. The diagnosis was myeloproliferative disorder. In a remand, dated in March 2012, the Board directed inter alia that the Veteran be afforded an examination, and that an etiological opinion be obtained. A hematologic and lymphatic conditions Disability Benefits Questionnaire (DBQ), dated in January 2013, shows that the report was completed by the same examiner (D.L.) who performed the March 2012 VA examination. She stated that the Veteran's claims file had been reviewed. The diagnosis was myelofibrosis. The report states that following: myelofibrosis is a bone marrow disorder. Data is not available on myelofibrosis and Agent Orange. The occurrence of PMF (progressive massive fibrosis) has, in a minority of cases, been linked to exposure to thorium dioxide, petroleum manufacturing plants (especially toluene and benzene), and ionizing radiation. A very high incidence of PMF has been noted in patients given thorium-based radiographic contrast material and in individuals exposed to atomic bombs at Hiroshima. In an addendum, dated February 13, 2013, D.L. stated that the Veteran does not have leukemia. In an addendum, dated February 13, 2013, a VA physician, A.S., M.D., stated that the Veteran's claims file had been reviewed. Dr. S stated the following: I agree with [Dr. E] that there is (even currently, 4 years after his letter) insufficient scientific evidence to prove a causal relationship between agent orange exposure and myeloproliferative disorder. And I agree that it is difficult to rule out all possibility. C&P (VA compensation and pension) medical examiners are instructed that causal relationships not be presumed either upon mere possibility or held to the same standards as medical science would demand, but rather that cause be presumed based on an intermediate threshold - one in which A must be 50% possible to have caused B. The VBA's threshold for proof of causality is significantly less that that medical science requires (proof of a dose response effect, a plausible biological mechanism, and control for other variables in reproducible and reliable studies). However, the VBA criteria does not descend to infer a causal relationship wherever any possibility less than 50% might exist (for instance just because one event follows another sequentially, or because one exposure is linked to another condition). Because the extant medical literature does not provide sufficient evidence that agent orange exposure is at least 50% possible to cause myeloproliferative disorder, and because VBA regulations require this level of medical evidence in order to presume causality, there is currently insufficient evidence to support a causal connection between the herbicide exposure and the Veteran's myeloproliferative disorder. In an addendum, dated February 13, 2013, D.L. stated that she concurs with Dr. A.S.'s opinion. The Board finds that the claim must be denied. With regard to the possibility of service connection on a direct basis, the Veteran was not shown to have myeloproliferative disorder during service. Rather, the Veteran was first diagnosed with myeloproliferative disorder in 2008. This is about 39 years after separation from active duty service. There is no competent opinion in support of the claim. In this regard, service connection under the theory of continuity of symptomatology simply is not applicable because § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). In this case, myeloproliferative disorder is not one of the disorders listed at 38 C.F.R. § 3.309(a) (2012), and the U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)), and a continuity of symptomatology (38 C.F.R. § 3.303(b)), is not warranted. With regard to the possibility of service connection based on exposure to Agent Orange, the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange. However, the applicable law does not include myeloproliferative disorder as a condition for which presumptive service connection may be granted based on exposure to Agent Orange. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Therefore, service connection for the claimed disability is not warranted under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. The Board further finds that the February 2013 VA opinion is highly probative evidence against the claim. This opinion is shown to have been based on a review of the Veteran's claims file, and it clearly states that medical literature does not currently provide a basis to find that it is at least as likely as not that Agent Orange exposure caused the Veteran's myeloproliferative disorder. See Prejean v. West, 13 Vet. App. 444, 448-9(2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The January 2013 opinion of D.L. similarly states that data is not available on myelofibrosis and exposure to Agent Orange. There is no evidence to the contrary. The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered the September 2009 opinion of Dr. E, in which he states, in part, that myeloproliferative disorder is a disease "within the spectrum of blood diseases such as leukemia and so it remains possible that Agent Orange could be a cause although again there is insufficient evidence to prove it." The CAVC has stated that a medical report "must be read as a whole." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Here, Dr. E concedes that "there is inadequate or insufficient evidence to determine whether an association exists" between leukemia and exposure to Agent Orange. He nevertheless states that an etiological relationship between the Veteran's myeloproliferative disorder and exposure to Agent Orange "may be possible." However, current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102 (2012); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In summary, Dr. E concedes that a statistical correlation between exposure to Agent Orange and myeloproliferative disorder is not established. He did not discuss whether there are other risk factors that might be the cause of the condition for which benefits are sought, or whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). His opinion is speculative in its terms. It is therefore not afforded sufficient probative value to warrant a grant of the claim. As noted in the Board's remand, VA regulations currently provide for presumptive service connection for all chronic B-cell leukemias, including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia. 38 C.F.R. § 3.309 (2012). However, the evidence shows that the Veteran does not have leukemia. The Veteran has not been diagnosed with leukemia, and there is a February 2013 VA opinion of record concluding that he does not have leukemia. Accordingly, service connection for leukemia is not warranted under 38 C.F.R. § 3.309; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). As a final matter, the Veteran has submitted several medical articles. These articles state that polycythemia vera has no known cause, that "no one knows what triggers the overproduction of cells" (a characteristic of myeloproliferative disorders) (although theories include genetic and environmental factors), and that risk factors include age, gender, and environmental factors (to include exposure to "chemicals," "petrochemicals" and intense radiation). None of these article state that exposure to Agent Orange is a risk factor for, or a cause of, myeloproliferative disorder. In summary, these articles are so general in nature, and so nonspecific to the appellant's case, that the Board affords them little probative weight. They therefore do not provide a sufficient basis to find that there is a causal relationship between the Veteran's service and the claimed condition. See e.g. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The issue on appeal is based on the contention that a myeloproliferative disorder has been caused by exposure to Agent Orange. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran has myeloproliferative disorder that is related to exposure to Agent Orange, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran's service treatment reports and post-service medical records have been discussed. The Board has determined that service connection for a myeloproliferative disorder is not warranted. Etiological opinions have been obtained in which it was concluded that there is insufficient evidence to show that the Veteran's myeloproliferative disorder is due to exposure to Agent Orange. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that a myeloproliferative disorder was caused by his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran, dated in July and September of 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded a VA examination, and etiological opinions have been obtained. In March 2012, the Board remanded this claim. The Board directed that an attempt be made to obtain all outstanding records of treatment from the New Philadelphia CBOC since February 2009. This has been done. The Board also directed that the Veteran be scheduled for a VA examination, with a hematologist or oncologist if possible, to determine the nature and etiology of his myeloproliferating disorder. In March 2012, the Veteran was afforded an examination, and the requested etiological opinion has been obtained. In this regard, although the Veteran was not examined by a hematologist or oncologist, the Board stated that this was only to be done "if possible," and under the circumstances, the Board may assume that neither of these specialists was available. See Mindenhall v. Brown, 7 Vet. App. 271 (1994). The Board further points out that an etiological opinion was subsequently obtained from a VA physician, specifically, an internist. See Monzingo, 26 Vet. App. at 106-07 ("the general presumption of competence includes a presumption that physicians remain up-to-date on medical knowledge and current medical studies."). Given the foregoing, the Board finds that there has been substantial compliance with its March 2012 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against this claim. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ___________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs