Citation Nr: 1645624 Decision Date: 12/06/16 Archive Date: 12/19/16 DOCKET NO. 10-44 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to herbicide exposure. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) prior to July 12, 2016. 3. Entitlement to a permanent and total rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, as well as an administrative denial of VA nonservice-connected disability pension, also in October 2009. Pursuant to his request, the Veteran was afforded a hearing before RO personnel in December 2010. A transcript of that proceeding is of record. The issues considered on appeal were remanded by the Board for further development in May 2013. At that time, the issue of entitlement to service connection for a left leg injury was also remanded. In a July 2015 rating decision, the Veteran was granted service connection for degenerative joint disease of the left hip, previously evaluated as residuals of a left leg injury. As the appeal was granted in full the issue is no longer before the Board. Of note, in an August 2016 rating decision, the RO granted service connection for small lymphocytic lymphoma effective July 12, 2016, the date of the Veteran's claim for that disability. In this respect, the Board notes that the Veteran's claim for chronic lymphotic leukemia was received in June 2009 and that treatment records from March 2009 and an August 2016 letter from the Veteran's oncologist Dr. M.K. appear to associate chronic lymphotic leukemia and small lymphotic lymphoma. As the Board is granting service connection for chronic lymphocytic leukemia, the RO has the opportunity to determine the rating for that disorder and whether it is associated with the later service-connected small lymphotic lymphoma. With respect to the claim for a TDIU, following an August 2016 rating decision which granted service connection for small lymphocytic lymphoma with a 100 percent evaluation, effective July 12, 2016, the Veteran was also awarded special monthly compensation, effective July 12, 2016. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant Special Monthly Compensation (SMC) under 38 U.S.C.A. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). However, there remain situations where the granting of a 100 percent schedular rating can moot a TDIU claim. Here, the Veteran as the Veteran was also granted SMC effective July 12, 2016 based on his 100 percent schedular rating for small lymphocytic lymphoma and additional disabilities that are independently rated at 60 percent or more. Therefore the claim for a TDIU from July 12, 2016 onward is moot; however, the period prior to July 12, 2016 remains on appeal. The issues of entitlement to a TDIU prior to July 12, 2016 and entitlement to a permanent and total rating for pension purposes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides during his military service. 2. The Veteran has been diagnosed as having chronic lymphocytic leukemia (CLL). CONCLUSION OF LAW The Veteran's chronic lymphocytic leukemia, was presumptively incurred during his active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303 , 3.304, 3.307(a)(6), 3.309(e) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA In this decision, the Board grants the Veteran's claim for service connection for chronic lymphocytic leukemia, which represents a complete grant of the benefit sought on appeal. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (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 an injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Regarding the second prong of service connection, the existence of an in-service injury, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). The Board notes that "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C.A. § 1116 (a)(3) (West 2014); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a) (2015). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). During the course of the appeal, the United States Court of Appeals for Veterans Claims (Court) decided Gray v. McDonald, 27 Vet. App. 313 (2015). The Court directed VA to reevaluate its definition of inland waterways. In response, VA compiled a list of ships that operated in the inland waterways of Vietnam. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/index.asp. The list contains five categories of ships that operated on the waters of Vietnam. A ship is placed on this list when documentary evidence shows that it fits into a particular category. The required evidence can come from an official ship history, deck logs, cruise books, Captain's letters, or similar documents. A specific ship may be listed in more than one category, based on its activities. Evidence requirements for the presumption of herbicide exposure may vary depending on what dates the Veteran was aboard and what ship activity occurred on those dates. Ship categories include, but are not limited to "Ships operating temporarily on Vietnam's inland waterways." Id. The "Ships operating temporarily on Vietnam's inland waterways" category includes large ocean-going ships that operated primarily on Vietnam's offshore waters for gunfire support of ground operations and interdiction of enemy vessels travelling along coastal waters. It also includes ships supplying and supporting these operations. Examples of such vessels include destroyers, cruisers, and cargo ships. The deep offshore waters are often referred to as "blue waters" and naval vessels operating on them are referred to as the Blue Water Navy. Ships in this category entered Vietnam's inland waterways temporarily as part of their gunfire, interdiction, or support missions. VA has agreed that all Veterans who served aboard these vessels at the time of entry into Vietnam's inland waterways are eligible for the presumption of herbicide exposure. VA's compilation of ships that operated in the inland waterways of Vietnam includes the U.S.S. Higbee, noting that the destroyer provided naval gunfire support from Ganh Rai Bay and Mekong River Delta during January-February and April 1966; March 1969; and September 1970. Turning to the nexus requirement for service connection, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied; those diseases include chronic lymphocytic leukemia 38 C.F.R. § 3.309(e). The Veteran asserts that while serving aboard the U.S.S. Higbee off the coast of the Republic of Vietnam waterways, he was exposed to herbicides (Agent Orange). Review of the Veteran's claims file confirms that he served aboard the U.S.S. Higbee between December 1965 and June 1966. VA treatment records include a March 2009 molecular diagnostics report which was interpreted as showing b-lineage chronic lymphotic leukemia/small lymphocytic lymphoma and the Veteran is shown to have received treatment for leukemia thereafter. An August 2016 letter from the Veteran's oncologist, Dr. M.K. notes that the Veteran was diagnosed with chronic lymphocytic leukemia/small lymphocytic lymphoma in 2009, that he had a partial remission and now had progressive disease for which he was starting chemotherapy. Thus, the evidence demonstrates active leukemia and leukemia in the treatment phase during the appeal period. 38 C.F.R. § 3.309(e). Taking into consideration that the evidence of record shows that the U.S.S. Higbee provided naval support in Ganh Rai Bay and the Mekong River Delta, coinciding with the Veteran's dates aboard the vessel, the Veteran is presumed to have been exposed to herbicides in service. As he has a present disability, chronic lymphocytic leukemia, the Board finds that service connection is warranted on a presumptive basis. See 38 C.F.R. §§ 3.102, 3.307, 3.309. With resolution of reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for chronic lymphocytic leukemia is granted. REMAND With regard to the issue of entitlement to a TDIU, as the RO must now assign a disability evaluation for the newly service-connected chronic lymphocytic leukemia, that determination may affect the claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Finally, the Veteran is shown to have submitted income information pursuant to his non-service pension claim following the issuance of a June 2015 supplemental statement of the case. Under the circumstances, the Board must remand the issue to the RO for the issuance of a Supplemental Statement of the Case. 38 C.F.R. §19.31. In so doing, however, the Board notes that the Veteran's claim may be rendered moot by a finding of TDIU, and also notes that the income information submitted by the Veteran in July 2015 appears to exceed income requirements a permanent and total rating for pension purposes. Accordingly, the case is REMANDED for the following action: 1. Following the assignment of a disability rating for chronic lymphocytic leukemia, conduct any additional development deemed necessary pursuant to the Veteran's TDIU and pension claims. 2. Then readjudicate the remanded claims in a Supplemental Statement of the Case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs