Citation Nr: 1745596 Decision Date: 10/13/17 Archive Date: 10/19/17 DOCKET NO. 13-16 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for chronic anemia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran had previously filed a claim which was denied in a June 2007 rating decision. The Veteran did not appeal that denial; rather VA reopened the claim in the Nehmer review based on potential service connection presumption for Agent Orange exposure which was again denied in the August 2011 rating decision, which the Veteran appealed. In August 2016, the Veteran testified at a hearing using videoconference facilities before the undersigned Veterans Law Judge (VLJ), and a transcript has been associated with the electronic record. FINDINGS OF FACT 1. The Veteran has chronic anemia of unknown etiology despite several years of testing. 2. The Veteran's service records show he had active service in the Republic of Vietnam during the Vietnam era; the Veteran is presumed to have exposure to Agent Orange in service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic anemia have been met. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Because the Board is granting the service connection issue for chronic anemia in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide this claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). II. Service Connection The Veteran contends that he acquired chronic anemia during service as a result of exposure to Agent Orange. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be presumptively service connected even if there is no record of the disease in service. 38 U.S.C.A. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's records show that he was first diagnosed with chronic anemia around 1999. The Veteran has also made statements consistent with this. Since that time, the medical evidence of record shows that doctors from both the VA and private treatment facilities have tested the Veteran's blood and bone marrow several times to determine the origin of the chronic anemia but have been unsuccessful after 18 years. With respect to Agent Orange presumption, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," are on the presumptive service connection list in 38 C.F.R. § 3.309(e). Although the Veteran's chronic anemia has not definitively been diagnosed as one of the presumptive blood disorders, it has also not been definitively ruled out, as the doctors are unable to confirm exactly what type of chronic anemia or blood disorder the Veteran suffers from. In September 2005, a private doctor said there was no evidence of leukemia. In September 2011, a private doctor said there was no explanation for the Veteran's chronic leukemia, but it could possibly be hairy-cell leukemia. In August 2012, a private doctor opined the Veteran's condition was "likely B-cell leukemia." In March 2015, a VA treatment note indicated there was no leukemia found. Regardless of whether the Veteran's chronic anemia is ultimately diagnosed as one of the presumptive Agent Orange blood disorders, it does not preclude the Veteran from asserting direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). To this end, both VA and private treatment doctors have offered opinions on the connection between Agent Orange and the Veteran's chronic anemia of unknown origin. In September 2014, a private doctor explained that the Veteran's "blood studies and bone marrow studies are consistent with aplastic anemia...This unexplained recurrent anemia with an aplastic anemia pattern is consistent with exposure to toxic chemicals, such as Agent Orange." The doctor opined that it was more likely than not that the Veteran's recurrent anemia was related to Agent Orange exposure. In a March 2015 VA examination and related opinion, the examiner noted that it would be "pure speculation to ascertain the cause of anemia" and that the "cause of anemia is unknown." The examiner explained that the various tests done indicate the Veteran does not have hairy B cell leukemia, which he agreed would be indicative of Agent Orange exposure, but as the available records did not show the Veteran to affirmatively have a disorder on the Agent Orange list, it was less likely than not that the Veteran's chronic anemia was related to Agent Orange exposure. In September 2015, a VA opinion was rendered based on the provision of additional records not available at the time of the previous VA examination. This opinion noted that a private oncologist treating the Veteran had stated that the Veteran's aplastic anemia could be related to Agent Orange exposure. After reviewing the additional records and "medical literature," the VA physician in September 2015 opined that it is more likely than not that the Veteran's aplastic anemia is the result of exposure to Agent Orange while in military service. In October 2015, the same VA physician who had rendered the positive opinion in September 2015 wrote a new opinion explaining that since the Veteran's condition, diagnosed as "aplastic anemia with hypocellular bone marrow with no obvious dysplastic changes," was not on the Agent Orange list, the condition was now determined to be less likely than not related to exposure to Agent Orange while in service. In a June 2016 note from a private cancer treatment facility where the Veteran had undergone a bone marrow biopsy, the physician opined that the Veteran's marrow "has been damaged due to something toxic... it just looks like damaged marrow." That doctor was still unable to give a firm diagnosis, but stated "...if it is close to anything, it is aplastic anemia." Regardless of whether doctors ultimately diagnose the Veteran's chronic anemia as a blood disorder covered by the Agent Orange presumption, his private oncologists have opined that his bone marrow is damaged, causing anemia of unspecified origin, which is more likely than not the result of exposure to a toxin like Agent Orange. This case presents an obvious application of the reasonable doubt standard since doctors have opined both that the Veteran's chronic anemia is possibly the result of exposure to a toxin such as Agent Orange, and that it is less likely than not that his anemia is related to exposure to Agent Orange since the Veteran has not been diagnosed with a blood disorder on the Agent Orange presumption list, notwithstanding the fact that the doctors have been unable to firmly diagnose the Veteran's anemia at all. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's chronic anemia of unknown origin meets the criteria for service connection. 38 U.S.C.A. § 5107 (West 2014), 38 C.F.R. § 3.102 (2016), and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic anemia is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs