Citation Nr: 1423935 Decision Date: 05/28/14 Archive Date: 06/06/14 DOCKET NO. 10-10 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for myelodysplastic syndrome with acute myelogenous leukemia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1966 to April 1972 and from March 1974 to January 1976, including service in The Republic of Vietnam from December 1966 to December 1967 and from October 1968 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a raring decision in September 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge2. The transcript of the hearing is the Veteran's file. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in January 2014, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). FINDING OF FACT Myelodysplastic syndrome with acute myelogenous leukemia is unrelated to an injury, disease, or event during a period of active service and was not caused by or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for myelodysplastic syndrome with acute myelogenous leukemia have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in March 2009. The Veteran was notified of the evidence needed to substantiate a claim for service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, and that with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and timing of the VCAA notice, the notice complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has obtained service records and VA and private medical records. In January 2014, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). As the VHA medical opinion was based on a review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the VHA opinion is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury that was incurred or a preexisting injury or disease that was aggravated during active service. 38 U.S.C.A. §§ 1110, 1131. To establish direct service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also 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). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Some chronic diseases, such as leukemia, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." As leukemia is a chronic condition listed under 38 C.F.R. § 3.309(a), provisions under 38 C.F.R. § 3.303(b) are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Certain diseases associated with Agent Orange exposure in service are presumed to be service connected if the disease is manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309(e). Evidentiary Standards VA must give consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the weight and credibility of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service records show that the Veteran served in The Republic of Vietnam from December 1966 to December 1967 and from October 1968 to October 1969. As such he is presumed to have been exposed to certain herbicides, including Agent Orange. 38 C.F.R. §§ 3.307, 3.309(e). The service treatment records contain no complaint, finding, history, treatment, or diagnosis of myelodysplastic syndrome with acute myelogenous leukemia. After service, private medical records show that in August 2002 the Veteran had an elevated PSA. In October 2002, a biopsy showed adenocarcinoma. After consultation with a radiation oncologist, the Veteran elected to have brachytherapy, which was started in January 2003. In July 2003, VA records show that the prostate cancer was stable with radioactive seed implants. In August 2003, VA granted service connection for prostate cancer on a presumptive basis due to exposure to Agent Orange in Vietnam. In February 2009, laboratory tests supported a histologic impression of acute myelogenous leukemia. In April 2009, P.W.M., MD, Ph.D., the Veteran's attending physician at Yale University School of Medicine, Department of Internal Medicine, Hematology Section, stated that the Veteran had developed acute myeloid leukemia that probably evolved out of a myelodysplastic syndrome. The physician stated that prior radiation therapy for prostate cancer was a potential risk factor for the development of a myelodysplastic syndrome or acute leukemia, though it was not possible to make a definitive association at the time. In August 2009 on VA examination, the VA examiner discussed the Veteran's clinical history of myelodysplastic syndrome with acute myeloid leukemia including the following. The Veteran was found to have prostate cancer in August 2002, and then was treated with seed implants in January 2003. In 2009, the Veteran developed acute myelogenous leukemia, which was discovered in March 2009 after he was admitted with a bacterial infection in his blood. At that time his blood had a low level of white blood cells that had resulted in frequent infections. After examination, the diagnosis was acute myelogenous leukemia. The VA examiner expressed the opinion that myeloid leukemia was less likely than not related to seed implants for treatment of the service-connected prostate cancer. The VA examiner reported that the literature did mention radiation and possible correlation to acute myelogenous leukemia, but the radiation exposure had to be at a significant level. In July 2011, a VA physician expressed the opinion that it was less likely as not that myelodysplastic syndrome with acute myelogenous leukemia was caused by or aggravated by or related to one of the 14 kinds of lymphomas involving B-cells (listed in the statement), or any of the five types of leukemias (HCL). In January 2014, the Board obtained a VHA medical expert opinion from the Chief, Department of Radiation Oncology, of the VA Healthcare System. The VHA expert was asked to address the question of the likelihood that myelodysplastic syndrome or acute myelogenous leukemia or both were caused by or aggravated by a course of radiation therapy with radioactive seed implants for treatment of the service-connected prostate cancer. After a review of the Veteran's history, including brachytherapy radiation treatment for prostate cancer, the VHA expert noted that the Veteran developed acute myelogenous leukemia in 2009. The VHA expert stated that the most probable level of radiation used was so minimal that any side effect due to exposure to the bone marrow had not been seen in his experience or documented in the literature. The VHA expert noted that at the Seattle Prostate Institute, where physicians had performed more than 7,000 brachytherapy procedures, there was no documented bone marrow or blood disease after brachytherapy to the prostate. The VHA expert noted that myelodysplastic syndrome can happen after exposure to Agent Orange and many radiomimetic alkylating agents such as busulfan or nitrosurea, or after exposure of bone marrow to a large amount of radiation. The VHA expert stated however that none of the conditions except exposure to Agent Orange applied to the Veteran's case. The VHA expert stated that acute myelogenous leukemia was not one of the chronic B-cell leukemias and that the two diseases are separate. The VHA expert then expressed the opinion, that based on his experience and after review of the literature, it was less likely than not (probability less than 50 percent), that myelodysplastic syndrome or acute myelogenous leukemia or both, were caused by or aggravated by a course of radiation therapy with radioactive seed implants for the treatment of service-connected prostate cancer, and that acute myelogenous leukemia was not one of the chronic B-cell leukemias associated with exposure to Agent Orange. Analysis The Veteran does not argue and the evidence does not suggest that myelodysplastic syndrome with acute myelogenous leukemia was affirmatively shown to have had onset during service or that symptoms were noted in service. For this reason, 38 C.F.R. §3.303(a) (service connection based on affirmatively showing onset in service) and 38 C.F.R. § 3.303(b) (service connection based on chronicity and continuity of symptomatology) do not apply. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service and then again at a later date applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases under 38 C.F.R. § 3.309(a) that are "noted during service" under 38 C.F.R. § 3.303(b), that is, that the condition is indicative of, but not dispositive of a chronic disease). As for service connection based on an initial diagnosis after service, there is no medical evidence that myelodysplastic syndrome with acute myelogenous leukemia is related to an injury, disease, or event in service. 38 C.F.R. § 3.303(d). And as myelodysplastic syndrome with acute myelogenous leukemia was not diagnosed for more than 30 years after separation from service, presumptive service connection based on the one year presumption for leukemia following discharge from service in 1976 as a chronic disease is not established. 38 C.F.R. §§ 3.307 and 3.309(a). Myelodysplastic syndrome with acute myelogenous leukemia is not listed under 38 C.F.R. § 3.309(e) as a chronic disease associated with exposure to Agent Orange so service connection by presumption based on exposure to Agent Orange is not warranted. 38 C.F.R. §§ 3.307 and 3.309(e). Further, there is no competent evidence showing that myelodysplastic syndrome with acute myelogenous leukemia was actually caused by exposure to Agent Orange in service. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To the extent the Veteran asserts that myelodysplastic syndrome with acute myelogenous leukemia is related to service or to a service-connected disability, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, and lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Myelodysplastic syndrome with acute myelogenous leukemia is not a type of condition under case law that has been found to be a simple medical condition. See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, cancer, leukemia, is specifically excluded as a simple medical condition. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify myelodysplastic syndrome with acute myelogenous leukemia. As the claimed disease is not simple medical condition, any inference, that is, the Veteran's assertions that the claimed disability is caused by or aggravated by a service -connected disability cannot be competent lay evidence and as no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to express an opinion on the cause or aggravation of the claimed disability, the Veteran's lay evidence is not competent evidence, and the Veteran's statements are excluded, that is, not to be considered as evidence favorable to the claim. As for the medical evidence, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008). As for the opinion of P.W.M., MD, Ph.D., the physician stated that radiation therapy for prostate cancer was a potential risk factor for the development of a myelodysplastic syndrome or acute leukemia, though it was not possible to make a definitive association. As the opinion is equivocally it is too speculative to establish a causal relationship and the opinion has no probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in the term of "may" [the equivalent of possible] also implies "may or may not" and is too speculative to establish a medical nexus). As for the opinion of the VHA expert, the VHA expert expressed the opinion that it was less likely than not (probability less than 50 percent) that myelodysplastic syndrome with acute myelogenous leukemia was caused by or aggravated by a course of radiation therapy with radioactive seed implants for treatment of service-connected prostate cancer, and acute myelogenous leukemia was not one of the chronic B-cell leukemias associated with exposure to Agent Orange. As the VHA expert applied medical analysis to the facts of the case and supported the conclusion reached in the opinion with a rationale based on special expertise and a review of the literature the Board finds that the opinion of the VHA expert is persuasive evidence, which opposes rather than supports the claim. And there is no favorable, competent lay or medical evidence on the material questions of a causal relationship between the myelodysplastic syndrome with acute myelogenous leukemia and service or a service-connected disability including treatment for service-connected prostate cancer, the preponderance of the evidence is against the claim of service connection and there is no doubt to be resolved and service connection is not warranted. (The Order follows on the next page.). ORDER Service connection for myelodysplastic syndrome with acute myelogenous leukemia is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs