Citation Nr: 1336064	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  11-04 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for acute myelogenous leukemia, status post allogenic transplant and neutropenic fever.  


REPRESENTATION

Appellant represented by:	Matthew D. Hill, Esq.


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel

INTRODUCTION

The Veteran served on active duty from September 1966 to September 1970.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2011, in support of his claim, the Veteran and his wife testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a "Travel Board" hearing; a transcript of the proceeding is of record.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  During the hearing, the presiding VLJ noted the basis of the prior determinations and the elements of the claim that were lacking to substantiate them.  The presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might help to substantiate the claim.  Neither the Veteran nor his representative asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing.  The hearing focused on the elements necessary to substantiate the claim.  Consistent with Bryant, the presiding VLJ complied with the duties set forth in § 3.103(c)(2).

During the hearing the Veteran provided additional evidence supporting his claim, consisting of an October 2011 private medical nexus opinion.  He also waived his right to have the RO initially consider it, preferring instead to have the Board do so in the first instance.  See 38 C.F.R. §§ 20.800, 20.1304 (2013).



FINDING OF FACT

When considering the probative medical and lay evidence of record, it is just as likely as not the Veteran's acute myelogenous leukemia, status post allogenic transplant and neutropenic fever, is the result of his military service.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, this acute myelogenous leukemia, status post allogenic transplant and neutropenic fever, is due to disease or injury incurred in or aggravated by his service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so-called "fourth" requirement that VA 

also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

As indicated below, the Board is granting the benefit sought on appeal of entitlement to service connection for acute myelogenous leukemia, status post treatment measures.  Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, the error at most would be inconsequential and, thus, nonprejucial, so harmless.  VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  There simply is no such possibility in this particular instance given the granting of this claim, if full.

The Veteran contends that he developed acute myelogenous leukemia as the consequence of hazardous chemical exposure during active duty in the Air Force, pursuant to his military occupational duties that required him to utilize such chemicals in the maintenance and repair of teletype communications machines.

Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service, if in the line of duty.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for a disease diagnosed after discharge, where the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).


The elements of a valid claim for direct service connection are:  (1) competent and credible evidence confirming the Veteran currently has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Further regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  Continuity of symptomatology is required when the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required to support the claim.  38 C.F.R. § 3.303(b).  But the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In assessing the posited cause-and-effect correlation between the Veteran's service and his now claimed disability, the evaluation of the evidence involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence is "credible," or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Moreover, where lay testimony provided regarding in-service injury is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 



When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

The Veteran has repeatedly alleged continuous in-service exposure to both Carbon Tetrachloride and Trichloroethylene, industrial solvents that according to medical literature he submitted are highly deleterious to health in sufficient concentrations, as well as known carcinogens.  His service treatment records (STRs) do not specifically corroborate such exposure, though his service personnel file indicates occupational duties consistent with the chemical exposure described by him.  His military occupational specialty (MOS) was Communication and Relay Equipment Repairman for about two years, followed by Teletype Maintenance Repairman for approximately one year.  According to one performance evaluation report during that time frame, his occupational duties included observation that he "installs and maintains teletype, teleautograph, cryptographic and related equipment."  

The most comprehensive and ultimately probative evidence of such hazardous chemical exposure originates from his Travel Board hearing testimony.  He attests to having been required to completely disassemble the teletype and cryptographic machines and rebuilt them every 45 days, during which he used the aforementioned chemicals to remove residual grease off of components.  The solvent chemicals were stored in 55 gallon vats, he describes.  He used the chemicals in a small room with no ventilation, over 12-hours shifts.  When supplies ran low, he would personally reorder the chemicals by name.  It is this information and the remaining highly detailed account of chemical exposure that the Board finds he is competent to state based on his own personal observation (consistent of course with his noted occupational duty assignments), and moreover, concerning which the Board finds credible, and cannot ascertain anything that would otherwise call into question the account of events.  Even as a layman, he is competent to report on factual matters of which he has firsthand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  And since the Board additionally finds his lay testimony concerning this credible, it is ultimately probative, so there is sufficient competent and credible evidence of in-service injury based primarily on lay witness testimony.  Buchanan, supra.

There remains the issue of whether the condition diagnosed in 2007 of acute myelogenous leukemia, and later treated through several measures including a bone marrow transplant, is etiologically related to the in-service chemical exposure which the Board accepts as having transpired.  This is requirement of a "causal nexus" between the claimed disability and military service.  See, e.g., Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

On this subject, the Veteran has provided an October 2011 opinion from a private nurse practitioner, which upon review of medical literature and the Veteran's claims file concluded that "it is at least as likely as not that the Veteran's in-service exposure to carbon tetrachloride and tricholorethylene was the cause of his myelodysplastic syndrome, which progressed to acute myeloid leukemia."  The opining clinical evaluator did not ascertain any outside risk factors that would otherwise explain the Veteran's development of acute myelogenous leukemia, besides his gender and the hazardous chemical exposure in service.  Given the extensive medical and scientific literature review conducted by this commenter, as well as stated accompanying credentials, the Board will ascribe probative weight to this opinion on the determinative issue of causation.  See Williams v. Brown, 4 Vet. App. 270, 273 (1993) (nurse's statement may constitute competent evidence where the nurse has specialized knowledge as to the area of medicine or participated in treatment).  See, too, Goss v. Brown, 9 Vet. App. 109, 113 (1996).

Certainly then, resolving all reasonable doubt in the Veteran's favor, it is just as likely as not his acute myelogenous leukemia is the result of the chemical exposure in service, and therefore, the criteria for service connection are met.  38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).


ORDER

The claim of entitlement to service connection for acute myelogenous leukemia, status post allogenic transplant and neutropenic fever, is granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs