Citation Nr: 1510466 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 10-19 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for chronic myelogenous leukemia (CML). REPRESENTATION Appellant represented by: Thomas K. Hagen, Attorney ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1973. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). The claim was then readjudicated following a special review as mandated by the class action of Nehmer v. U.S. Veterans' Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer et al v. U.S. Veterans Admin., 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III). The resulting June 2011 rating decision again denied the Veteran's claim. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge (VLJ) on October 21, 2010. The Veteran, through his representative, withdrew his hearing request in October 2010. As such, the Board considers his hearing request withdrawn and will now proceed to decide this claim on the merits. See 38 C.F.R. § 20.704. In September 2012, the Board remanded this case for further development. In February 2014, the Board denied the Veteran's claim. The Veteran appealed and in August 2014, the United States Court of Appeals for Veterans Claims vacated and remanded the Board's decision. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era; therefore exposure to herbicides is presumed. 2. The weight of the competent and credible evidence shows that the Veteran's chronic myelogenous leukemia (CML) is related to his military service, to include exposure to Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic myelogenous leukemia (CML) have been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has claimed that his leukemia was caused by herbicide exposure during service in the Republic of Vietnam. Specifically, the Veteran has argued that benzene, a chemical found in Agent Orange, is a known carcinogen and the likely cause of his CML. Service connection for certain disabilities is presumed for veterans who were exposed to herbicides while in service. 38 C.F.R. § 3.309(e). Moreover, exposure to an herbicide agent is presumed for veterans, such as the Veteran in this case, who had active service in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Nevertheless, the record does not show diagnoses of any of the disabilities listed in 38 C.F.R. § 3.309(e) for which service connection can be presumed for herbicide exposed veterans. The Veteran has argued that he should be entitled to presumptive service connection for CML because of the similarities between CML and chronic lymphocytic leukemia (CLL) for which service connection for veterans who were exposed to herbicides while in service exposure is presumed. Nevertheless, the list of presumptive conditions in 38 C.F.R. § 3.309(e) is exhaustive and does not include the Veteran's diagnosed condition of CML. Therefore, presumptive service connection is not warranted. However, even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, the claim can still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Private treatment records show a diagnosis of chronic myelogenous leukemia (CML) in January 2007. Thus, the current disability requirement is satisfied. The Veteran's service treatment records, including his February 1973 separation examination are silent with regard to CML or any symptoms that have been related to this diagnosis. As such, the record does not show an in-service onset of this condition. However, as noted above, the Veteran's service in the Republic of Vietnam entitles him to the presumption of exposure to herbicides. Thus, the in-service injury of herbicide exposure is conceded. As such, the remaining question for consideration is whether there is a medical nexus between the Veteran's current CML and his in-service herbicide exposure. The Board notes that in a December 2012 VA examination report and January 2013 addendum, a VA physician concluded that it is less likely than not that the Veteran's CML is related to his military service, to include exposure to herbicides. A December 2013 VHA opinion by a VA physician specializing in hematology and oncology, Dr. M.D.B. reached the same conclusion, noting that she had reviewed the relevant medical literature and consulted with a CML expert at a neighboring cancer institution before determining that there was insufficient evidence of an association between benzene and the development of CML. However, in support of his claim, the Veteran has submitted internet articles discussing the relationship between benzene and CML. He also submitted several letters and records from Dr. N.L., a private oncologist. In October 2009 and January 2010 treatment records, Dr. N.L. noted that he and the Veteran discussed the Veteran's disability and VA compensation, including VA research finding that there was no clear association between herbicide exposure and myeloid leukemias. Although Dr. N.L. said that he believed additional studies were underway, he did not contradict VA's findings or otherwise provide a positive medical nexus opinion. However, in an October 2010 letter, Dr. N.L. found that "It is my opinion that his chronic myelogenous leukemia (CML) is possibly related to Agent Orange exposure in Vietnam." Then in a January 2012 letter, Dr. N.L. opined that it was at least as likely as not that the Veteran's CML was caused by exposure to herbicides in service, noting that CML was linked to benzene exposure and benzene was part of the chemical structure of Agent Orange. He further noted that the Veteran had no other risk factors that would predispose him to CML. In February 2015, the Veteran submitted another medical opinion from a private oncologist, Dr. D.M.K., who concluded that the Veteran's exposure to Agent Orange is at least as likely as not the cause of his chronic myelogenous leukemia, as there is medical literature that supports that there is an increased risk of CML with benzene exposure and the Veteran was exposed to herbicides containing benzene in service. The Board notes that the opinions of record were all made by specialists who have reviewed medical literature on the relationship between CML and chemical exposure, but have reached differing conclusions. The Board therefore finds that the evidence for and against the Veteran's claim is in relative equipoise and awards the benefit of the doubt to the Veteran. Entitlement to service connection for chronic myelogenous leukemia (CML) is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for chronic myelogenous leukemia (CML) is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs