Citation Nr: 1333647 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-25 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL) with anemia and bladder problems, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a prostate condition, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to January 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2008 VA Form 9, the Veteran requested a Central Office hearing before a member of the Board in Washington, D.C. However, the Veteran advised the Board in July 2010 the he would be unable to attend such a hearing. The Veteran further stated that he wanted to have his representative provide testimony on his behalf. The Board notes that a November 2010 Informal Hearing Presentation from the Veteran's representative is of record. This case was previously before the Board in December 2010 and again in April 2013, and was remanded for additional development of the record. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. Chronic lymphocytic leukemia was not shown in service or for many years thereafter, and there is no competent evidence linking the Veteran's chronic lymphocytic leukemia to service. 3. The Veteran does not have a current prostate disability that is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for CLL with anemia and bladder problems have not been met. 38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2013). 2. The criteria for service connection for a prostate condition have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (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)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a June 2007 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has obtained relevant records including service treatment records, post service treatment records, and VA examination reports and medical opinions. The Board notes that actions requested in the prior remands have been undertaken. VA treatment records have been obtained and associated with the Veteran's claims file. In addition, a VA examination was conducted in January 2011 and VA medical opinions have been obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, the law provides that, where a veteran served ninety (90) days or more of active service during a period of war, or during peacetime service after December 31, 1946, and cancer become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Also, under 38 C.F.R. § 3.317, a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses); or (3) any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id. The evidence establishes that the Veteran served in Southwest Asia during the requisite time period. He argues that he has chronic lymphocytic leukemia (CLL) with anemia and a bladder problem as well as a prostate condition that are related environmental exposures while serving in the Gulf. Chronic Lymphocytic Leukemia Service treatment records show that during a December 1985 medical examination, the examiner noted that the Veteran had mild anemia with presumptive iron deficiency. Post-service VA treatment records show that in April 2007, the Veteran was diagnosed with CLL. An April 2007 Hematology and Oncology note shows that the Veteran had autoimmune hemolytic anemia associated with the CLL and a significantly thickened bladder wall. A May 2007 Oncology note reflects that the Veteran had anemia consistent with a chronic disease with low iron. A March 2009 Oncology note indicates treatment for CLL. A December 2010 Internal Medicine note shows that the Veteran suffered from anemia, possible autoimmune hemolytic and CLL. The Veteran was afforded a VA examination in January 2011. The examiner reviewed the claims file and noted that the Veteran had been diagnosed with CLL in 2007. The Veteran stated that for 6-8 months during his active duty service in Kuwait, he was exposed to oil burning fire. The examiner opined that the Veteran suffered from CLL with acute prolymphocytic transformation. The examiner also opined that the Veteran's bladder problem was from this CLL which was thought to be genetic related. However, the examiner stated that the she could not resolve the issue of a possible nexus between the Veteran's diagnosed CLL and his active duty service and the environmental exposure without resorting to mere speculation. A VA medical opinion was obtained in May 2013 from a physician specializing in hematology and oncology. The examiner reviewed the Veteran's claims file and noted that the Veteran was treated for an iron deficiency, as a result of hemorrhoids, while in service. The examiner opined that the iron deficiency noted while in service did not resemble the hemolytic anemia of leukemia. The examiner also stated that advanced age is a characteristic of CLL and noted that there was no indication of lymphocytosis found until 2007, when the Veteran was diagnosed with CLL. The examiner concluded that there was no evidence showing a relationship between the Veteran's current CLL diagnosis and his active duty period. The examiner also opined that it was less likely than not that environmental contaminants increased the Veteran's risk of developing CLL. In support of the conclusion, the VA examiner explained that a 2009 Institute of Medicine report on Health effects in Gulf War Veterans did not demonstrate any increase in CLL in Gulf veterans compared to those who did not serve in the Gulf. After a review of the entire record, the Board finds that the preponderance of the evidence is against service connection for CLL with anemia and bladder problems. Although the Veteran has a chronic disease subject to presumptive service connection (leukemia), the Veteran's chronic leukemia did not manifest to a compensable degree within one year following active service. The earliest evidence of CLL is in April 2007, approximately 15 years after service separation. For this reason, presumptive service connection for leukemia, as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309(a), is not warranted. The Board further finds that, although the Veteran served in the Southwest Asia Theater of operations, the medical evidence shows that the Veteran's illness has been attributed to a known clinical diagnosis, specifically CLL. Accordingly, service connection under 38 C.F.R. § 3.317 is not permitted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Next, the Board finds that the medical evidence of record is against finding a causal relationship between the Veteran's diagnosed CLL and active service. After reviewing the Veteran's claims file, the VA examiner who provided the May 2013 medical opinion concluded that the anemic symptoms of the Veteran's current CLL did not resemble the symptoms treated in service. He opined that there was no relationship between the Veterans current CLL and his military service. The examiner also concluded that the Veteran's CLL was not attributable to exposure from environmental hazards during the Persian Gulf War. There is no contrary medical opinion of record. Moreover, the May 2013 medical opinion included consideration of the history reported by the Veteran as well as the medical findings, and was supported by adequate rationale. Therefore, the Board affords the May 2013 opinion significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). 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, the nature and onset of CLL falls outside the realm of common knowledge of a lay person. CLL is a disorder diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to relate symptoms that he experienced at any time, he is not competent to opine on whether there is a link between his CLL and active service, as such requires specific medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, the Board affords the opinion of the VA oncologist significantly greater probative value than the Veteran's lay assertion as to the etiology of his CLL. As a final matter, the Board notes that the Veteran denied serving in Vietnam and denied exposure to Agent Orange on his application for compensation filed in May 2007. Accordingly, the presumptive provisions of 38 C.F.R. § 3.309(e) are not for application. In summary, the most probative evidence of record shows that the Veteran's CLL with anemia and bladder problems manifested years after service separation and is not causally related to service, to include exposure to environmental hazards. Thus, a preponderance of the evidence weighs against the claim and service connection for CLL is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Prostate Condition Service treatment records are negative for treatment or findings of a prostate disorder. A 1991 separation examination indicates that the Veteran's prostate was without masses or tenderness. Post-service VA treatment records show that in April 2007, the Veteran suffered gross hematuria with clots. A May 2007 urology note reflects that after a cystoscopy was performed, the Veteran was found to have suffered from lateral lobe hypertrophy of the prostate. A June 2007 VA treatment record shows that an enlarged lateral lobe was found. The Veteran was afforded a VA examination in January 2011. The Veteran stated that he was not aware of bladder or prostate problems, and was having no prostate symptoms. It was noted that the Veteran had blood in his urine 2007, but this problem had not continued. The examiner noted an asymptomatic big prostate was found in 2007. The examiner opined that the Veteran's prostate problem was not a result from being in service. In June 2013, the VA examiner above reviewed the claims file and provided a medical opinion. The examiner noted that the Veteran had very vascular prostatic lobes and was found to have a big prostate in 2007. The examiner found that the Veteran's infiltration of the bladder wall revealed a leukemia condition. The examiner opined that the infiltration found was a manifestation of the Veteran's leukemia disorder and not a bladder or prostate problem. Having carefully reviewed the record, the Board concludes that service connection is not warranted for a prostate condition. Service treatment records do not show that the Veteran had a prostate condition in service. The record does not establish that the findings in 2007 began during active military service. Notably, the January 2011 VA examination report shows that the Veteran denied having a prostate disorder. Further, the June 2013 VA examiner found that the infiltration of the bladder wall, found after the Veteran suffered a gross hematuria, was not a prostate problem, but a manifestation of the currently diagnosed leukemia. The June 2013 VA examiner's opinion constitutes highly probative evidence weighing against a relationship between the Veteran's claimed prostate condition and his period of service. The examiner reviewed the claims file, specifically discussed evidence contained therein, and had examined and obtained a history from the Veteran in January 2011. There is no medical opinion of record linking any current prostate condition to service. Further, provisions of 38 C.F.R. § 3.317 for disabilities associated with the Persian Gulf War are inapplicable. The Veteran's prostate complaint has been attributed to a known diagnosis of CLL, and is thus not an undiagnosed illness. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a prostate condition, to include as due to an undiagnosed illness. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a prostate disorder is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic lymphocytic leukemia with anemia and bladder problems is denied. Entitlement to service connection for a prostate condition is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs