Citation Nr: 1327407 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 11-09 827 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for acute leukemia, claimed as myelodysplastic syndrome, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Karl Truman, Attorney ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from November 1968 to October 1972, to include service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2010 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for myelodysplasia. In November 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in April 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. The Board notes that the Veteran had been previously represented by Disabled American Veterans (DAV), as reflected in a June 2010 VA Form 21-22 (Appointment of Individual as Claimant's Representative). In April 2013, the Board received a VA Form 21-22a naming Karl Truman, a private attorney, as the Veteran's representative. The Board recognizes the change in representation. See 38 C.F.R. § 20.605 (2012). In August 2013, a Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). Subsequent to the issuance of the February 2012 supplemental SOC (SSOC), the Veteran submitted evidence pertinent to the claim on appeal. RO consideration of this evidence was waived by the Veteran's representative in July 2013. See 38 C.F.R. § 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated through February 2012; the RO considered such documents in the February 2012 SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides. 3. The competent opinion evidence on the question of whether the Veteran's current acute leukemia is etiologically related to service is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for acute leukemia, claimed as myelodysplasia, are met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection on appeal, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. II. Analysis The Veteran contends that his current acute leukemia is the result of his in-service herbicide exposure. He has not alleged an in-service onset of his acute leukemia. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements 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). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202 -53216 (August 31, 2010). Service connection for a disability claimed as due to herbicide exposure may also be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Post-service treatment records reflect that the Veteran was diagnosed with myelodysplastic syndrome in August 2008, and that he subsequently underwent a variety of treatments, including injections, oral medications and chemotherapy. His disease was noted to have converted from myelodysplic syndrome to acute leukemia in approximately April 2013. Turning to the question of whether there is an etiological relationship between the Veteran's current acute leukemia and service, the Board notes that the Veteran had service in Vietnam during the Vietnam era; hence, he is presumed to have had herbicide exposure. Although the Veteran's acute leukemia is not medically shown to be a disease which is presumed to be etiologically-related to herbicide exposure, the Board notes that the record contains a several etiological opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The first of these opinions is reflected in March 2011 and August 2011 VA examination reports. The examiner noted that the Veteran did not suffer from leukemia at the time of the examinations and did not suffer from any condition for which presumptive service connection may be granted. The examiner further noted, upon a review of the literature, that myelodysplastic syndrome comprised a heterogeneous group of malignant stem cell disorders characterized by dysplastic and ineffective cell production and a variable risk of transformation to acute leukemia, and that the Veteran's risk of evolving to acute leukemia over time was low. The examiner further noted that myelodysplastic syndrome was not currently deemed as an "Agent Orange exposure related disease." The examiner opined that the Veteran's current blood disorder (myelodysplasia) was less likely as not (less than 50/50 probability) related to, caused by, aggravated by or as a result of active service, to include herbicide exposure. The second of these opinions was provided by the Veteran's treating VA physician, Dr. P. M., in February 2012, July 2012 and April 2013. Dr. P. M. indicated that she was Board certified in internal medicine, medical oncology and hematology and that her clinical expertise was in hematology and medical oncology. She opined that the Veteran's in-service exposure to Agent Orange was as likely as not the cause of his myelodysplastic syndrome as other causes had been eliminated during the work-up for this condition and that Agent Orange contained dioxin, which was known to cause disorders of myeloid maturation such as myelodysplastic syndrome. Dr. P. M. further opined that the a review of the literature showed that Agent Orange had been associated with the development of myeloid disorders and that the Veteran's disease had converted from myelodysplastic syndrome to acute leukemia in approximately April 2013. In the instant case, the Board can find no reason to accord more probative weight to the VA examiner's opinion or to the VA provider's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). In this regard, both opinions were provided by qualified medical professionals. Moreover, each medical opinion reflects consideration of the fact that the Veteran has an in-service history exposure to herbicides, as well as a review of the medical literature. Additionally, each opinion does not simply state that there is a positive or negative nexus; each clinician explains the rationale for the opinion provided. In sum, the record contains a competent opinion indicating that the Veteran's current acute leukemia was caused by his in-service herbicide exposure, and another competent, seemingly equally probative opinion indicating that the Veteran's myelodysplastic syndrome, which later developed into acute leukemia, was not related to his service, to include his exposure to herbicides therein. As the medical opinion evidence on the question of nexus between current acute leukemia and service is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's current acute leukemia is the result of in-service injury-specifically, his presumed in-service exposure to herbicides. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection acute leukemia, claimed as myelodysplasia, are met. (CONTINUED ON NEXT PAGE) ORDER Service connection for acute leukemia, claimed as myelodysplasia, is granted, subject the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs