Citation Nr: 1437167 Decision Date: 08/19/14 Archive Date: 08/27/14 DOCKET NO. 10-08 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a myeloproliferative disorder (claimed as leukemia) to include as secondary to in-service chemical exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1979 to December 1982. Thereafter, the Veteran had undetermined periods of inactive duty training and/or active duty for training as a member of the service reserves until January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. This claim was previously remanded by the Board in October 2012 and again in June 2014 for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A myeloproliferative disorder was not incurred in service and was first diagnosed many years after service. 2. No competent evidence tending to relate myeloproliferative disorder with active service, or to any disease, injury, or other incident, to include chemical exposure, incurred therein, has been submitted. CONCLUSION OF LAW The criteria for service connection for a myeloproliferative disorder have not been met. 38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 1137, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of the Veteran's claim, VA issued VCAA notice to her in the form of April and August 2009 and November 2012 letters which informed her of the evidence generally needed to support the claims on appeal. These notices included information regarding the assignment of an increased evaluation and effective date; what actions she needed to undertake; and how VA would assist her in developing her claim. The initial VCAA notice letter was issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. Finally, the Veteran was afforded a VA medical examination in December 2012. This examination is adequate as the examiner reviewed the file, considered the Veteran's reported history, and conducted a thorough physical examination providing findings necessary to the decide the claim. The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the question of current disability to decide the claim. See McLendon v. Nicholson, 20 Vet App. 79, 81 (2006) (a VA examination or opinion is necessary where there other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim). The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. The Veteran seeks service connection for a myeloproliferative disorder, to include leukemia. She asserts she served in a chemical unit during service and was exposed to toxic substances which resulted in a current disorder. Specifically, she asserts that during her service in Germany, she was assigned to a base which housed a chemical warfare unit and where such chemicals were stored. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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; 38 C.F.R. §§ 3.307, 3.309(a). 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. In the present case, the service treatment records are negative for any diagnosis of or treatment for any form of leukemia or a myeloproliferative disorder. No such disorder was noted on the October 1982 service separation examination, and the Veteran denied any history of any such disorder on the concurrent report of medical history. In September 1983, during a period of reserve service, the Veteran went to sick call with reports of abdominal pain. She also stated she "felt a lump" in her abdomen. She was sent to quarters for 24 hours for rest. No diagnosis was rendered at that time. She was separated from her reserve obligations in January 1985. No records of subsequent service have been presented. The Veteran's service personnel records confirm service with Battery D of the 56th Air Defense Artillery, the 372nd Transportation Company, and the 1006th General Supply Company. On her DD-214, her military occupational specialty (MOS) was listed as food service specialist. While she was not noted to service with a chemical unit, the Board notes her service with a general supply company. Additionally, her assertions of serving on a base in Germany which housed a chemical warfare unit are at least plausible. A VA medical examination and opinion was afforded the Veteran in December 2012. The claims file was reviewed following examination of the Veteran. The current diagnoses of a myeloproliferative disorder and chronic thrombocytosis were noted. The examiner noted that these disorders were diagnosed many years after service and symptoms thereof were not reported during service. Thus, the examiner found it was less likely than not that a chronic myeloproliferative disorder was incurred during service. After considering the totality of the record, the Board finds the preponderance of the lay and medical evidence to be against the award of service connection for a myeloproliferative disorder. A myeloproliferative disorder was first diagnosed in approximately 2009, approximately 25 years after service separation. The Veteran also has a diagnosis of chronic thrombocytosis, which was reportedly first diagnosed in 1993, 10 years after service separation. These lengthy periods without complaint or treatment are evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, no competent expert has opined that a current myeloproliferative disorder was incurred in service or manifested to a compensable degree within a year of service separation. In fact, when the appeal was reviewed by a VA examiner in December 2012, the examiner concluded it was less likely than not that a chronic myeloproliferative disorder was incurred in service. No competent evidence has likewise been presented linking the Veteran's alleged chemical exposure in service to current diagnoses of chronic thrombocytosis or myeloproliferative disorder. Even were the Board to assume the Veteran was exposed to unknown chemicals in service, a causal link must still be presented within the competent evidence of record linking such exposure and the current diagnoses. At present, no such evidence has been presented. The Board thus finds that the weight of the evidence is against a finding that a claimed myeloproliferative disorder was incurred in service, was chronic in service, has been continuous since service, or is due to an incident of service, to include chemical exposure. With regard to the Veteran's assertion that a current myeloproliferative disorder was incurred during service or as the result of chemical exposure in service, the Veteran is competent to report such lay incidents as in-service injury, treatment, or contemporaneous diagnosis as told to her by a doctor (which she does not assert), placement on profile (which she does not assert), and symptoms she experienced at any time, including in service and during the years after service to the present. The Board recognizes that a layperson is competent to testify regarding certain observable symptomatology such as pain. See Jandreau, 492 F.3d at 1372; see also Buchanan, 451 F.3d at 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran, however, is not competent to establish a matter that requires medical knowledge, such as providing a diagnosis or etiology of a current myeloproliferative disorder, as such blood disorders are complex disorders which require specialized medical knowledge. Id. The Veteran is also not competent to establish an etiological link between any current myeloproliferative disorder, and any disease, injury, or other incident of service. Id. For these reasons, the Board concludes that the preponderance of the evidence is against the claim for service connection for a myeloproliferative disorder, including as due to chemical exposure. The Board also concludes that there is no doubt to be otherwise resolved, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a myeloproliferative disorder is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs