Citation Nr: 1331776 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 11-06 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for polycythemia vera. 2. Entitlement to service connection for major depression and generalized anxiety disorder, to include as secondary to polycythemia vera. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Dr. "M.K." ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1971 to December 1971; this period includes 139 days of time lost due to being absent without leave. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Paul, Minnesota. In those decisions, the RO declined to reopen the Veteran's claim for entitlement to service connection for polycythemia vera and denied entitlement to service connection for major depression, anxiety disorder, and alcohol dependence. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via videoconference; a transcript of that hearing is associated with the claims file. In March 2013, the Board reopened the claim for entitlement to service connection for polycythemia vera and remanded the underlying service connection claim for additional development. The Board also bifurcated the psychiatric claim, denying entitlement to service connection for alcohol abuse and remanding the claim for major depression and anxiety disorder. The issue of entitlement to service connection for alcohol abuse is therefore no longer on appeal. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether polycythemia vera is related to chemical exposure in service. 2. Major depression and generalized anxiety disorder are more likely than not caused by service polycythemia vera. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, polycythemia vera was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. With reasonable doubt resolved in favor of the Veteran, major depression and generalized anxiety disorder are proximately due to or the result of service-connected polycythemia vera. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As the Board is, however, granting the only claims being decided herein, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Polycythemia Vera Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran was diagnosed with polycythemia vera many years after service. He has claimed both that it had its onset in service, as indicated by the symptoms of headaches, dizziness, eye trouble, and chest pain and pressure that he reported at separation, and that it is related to chemicals to which he was exposed during service while operating graders at the landfills at Fort Sill and Fort Wood. With regard to chemical exposure, the Veteran submitted environmental reports indicating that landfills operated during the Veteran's period of service at these locations contained metallic, volatile, and polycyclic aromatic hydrocarbon contaminants. The Veteran's service personnel records reflect that he was a grader operator and that he served at these locations. The Board therefore finds his allegation of in-service exposure to these substances to be credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The dispositive issue in this case is therefore whether the Veteran's polycythemia vera is related to his chemical exposure or anything else in service. There are multiple medical opinions on this question. Dr. "M.K.," the Veteran's treating VA hematologist/oncologist, indicated the Veteran experienced a number of symptoms during service, including headaches, dizziness, blurry vision, and chest pain or pressure, which, although non-specific, are consistent with polycythemia vera. Dr. M.K. also wrote that the Veteran's service treatment records lacked any blood work - specifically, a hemoglobin test - and that, as such, an in-service onset could not be ruled out. He also indicated that polycythemia vera can take years to develop and would not likely have been diagnosed in service, but also that it was unlikely that the Veteran had polycythemia vera in service, much closer to a 10 percent possibility than a 100 percent possibility. Dr. M.K. also appeared before the Board in October 2012 at which time he testified that the Veteran's May 1995 red blood count of 17.7 was "certainly elevated." He also reiterated that the Veteran's in-service complaints would be consistent with an individual suffering from polycythemia vera. There is also a treatment note of a private physician, Dr. "P.G.," who wrote, "After reviewing his records from VA, I told him that, it is likely that his P Vera is related to the exposures to chemicals that he had had working on dump grounds, but there is no hard scientific data to prove that link yet." On the other hand, in August 2012, a VA physician whose specialty was unclear found that the Veteran's polycythemia vera was less likely than not related to service because of the lack of evidence of a hemoglobin level greater than 18.5 while in service, the fact that the disease was first diagnosed in 2001, and that the disease is rarely diagnosed in individuals younger than 40. He noted what he considered a normal hemoglobin reading of 17.7 in May 1995 before the diagnosis of polycythemia vera. In its March 2013 remand, the Board found that the evidence was insufficient to decide the claim, as there were conflicting opinions, in particular between the VA examiner and M.K. as to whether the hemoglobin count was elevated in 1995 and also a lack of specific opinion from the VA examiner as to whether the polycythemia vera was likely related to chemical exposure. The Board therefore requested a medical opinion and one was provided in August 2013. After an extensive review of the claims file, the physician wrote that he was unable to determine whether the Veteran's polycythemia vera was related to the Veteran's brief (less than 4 months) exposure and the lengthy period between service and diagnosis of the disease. Significantly, however, the physician noted that the literature did support the possibility of polycythemia vera being caused by such an exposure, as Dr. P.G. had pointed out. In support of this conclusion, the VA physician cited a statement from an article in the Hematology/Oncology Clinics of North America entitled "Why Does my Patient Have Erythrocytosis," which indicated that increased incidence of polycythemia vera had been reported in workers in petroleum refineries and chemical plants and that environmental triggers were further implicated after a description of a cluster of patients with polycythemia vera were found in an area of eastern Pennsylvania that contained numerous sources of hazardous materials. Based on the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's polycythemia vera is related to his chemical exposure in service. The Board has already found the August 2012 negative VA opinion to be inadequate. Moreover, while Dr. P.G. found it was likely that the polycythemia vera was related to service based on his review of the evidence but that there was insufficient scientific data to support his conclusion, the August 2013 medical opinion has provided precisely that data. Thus, although August 2013 opinion was not probative because a non-speculative conclusion was not provided, Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) ( "The examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection."), Dr. P.G.'s positive opinion was probative because he gave a sufficiently definitive opinion based on his review of the evidence and reserved judgment in light of a lack of support in the scientific literature for the possibility of such an association, support that was provided in the form of the relevant article cited by the VA physician in August 2013. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, there is at least as much evidence in support of a relationship between the Veteran's polycythemia vera and his in-service chemical exposure as there is against it. Entitlement to service connection for this disability is therefore warranted. 38 U.S.C.A. § 5107(b). Major Depression and Anxiety Disorder Entitlement to service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran claims that his major depression and anxiety disorder are caused by his polycythemia vera. On the July 2009 VA examination, after a detailed review of the evidence in the claims file, including the manifestation of the Veteran's polycythemia vera and the Veteran's claim that it caused his psychiatric disability, the VA psychologist diagnosed major depression and generalized anxiety disorder and wrote, "I concurred with [the Veteran's] convincing analysis that his depression and anxiety were caused by his polycythemia vera and associated medical problems." There is no contrary medical opinion in the evidence of record. As the July 2009 opinion is probative, the weight of the evidence supports a causal relationship between the Veteran's polycythemia vera and his major depression and generalized anxiety disorder. Entitlement to service connection for these disabilities as secondary to the now service-connected polycythemia vera is therefore warranted. ORDER Entitlement to service connection for polycythemia vera is granted. Entitlement to service connection for major depression and generalized anxiety disorder, secondary to polycythemia vera, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs