Citation Nr: 1748699 Decision Date: 10/30/17 Archive Date: 11/06/17 DOCKET NO. 13-17 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for essential thrombocytosis (ET) (also claimed as myeloproliferative disorder), to include as secondary to exposure to an herbicide agent, i.e., Agent Orange. 2. Entitlement to an initial rating in excess of 70 percent disabling for an acquired psychiatric disability. 3. Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1970, including service in the Republic of Vietnam from June 1969 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A March 2013 rating decision by the RO granted an increased initial 70 percent rating for an acquired psychiatric disability, effective February 21, 2012, the date of claim. As this is not the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Parenthetically, the Board notes that in November 2016, the Veteran filed a formal claim for TDIU (via VA Form 21-8940). However, in its March 2013 rating decision, the RO implied that the issue of TDIU was reasonably raised by the record as a component of the initial rating assigned. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, appropriate consideration of the Veteran's TDIU claim under Rice will be given for the entire period on appeal. In November 2016, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. Although a review of the record reflects additional medical evidence addressing the Veteran's acquired psychiatric disability and ET was added to the record subsequent to the last statement of the case dated in March 2013 and August 2016, respectively, the Veteran, through his representative, waived initial AOJ consideration at the November 2016 hearing. The issue of special monthly compensation (SMC) based on aid and attendance has been raised by the record at the November 2016 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an increased initial rating for an acquired psychiatric disability and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran served on active duty in the Republic of Vietnam during a period in which he is presumed to have been exposed to an herbicide agent. 2. The Veteran's ET was not caused by or related to exposure to Agent Orange (AO) or any other herbicide agent in service. CONCLUSION OF LAW The criteria for service connection, to include as secondary to exposure to AO, for ET have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection Legal Principles Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service incurrence and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans who served in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as AO, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6)(iii). Certain listed medical conditions may be granted service connection on a presumptive basis due to such exposure. 38 C.F.R. § 3.309(e). The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.303 ("The presumptive provisions of the statute and [VA] regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."). For a veteran to be entitled to the presumption of service connection under 38 C.F.R. § 3.307(a)(1)(6)(iii), he or she must have been present at some point on the landmass or "inland waters" (aka brown waters) of RVN. Haas v. Peake, 525 F.3d 1168, 1182-83 (Fed. Cir. 2008). Factual Background The relevant evidence of record consists of the Veteran's service treatment records (STRs), military personnel records (MPRs), post-service VA and private treatment records, and lay statements by the Veteran and other sources. The Veteran's MPRs reflect, in pertinent part, that the Veteran served on active duty in RVN from June 1969 to May 1970. Records also reflect the Veteran was awarded a Combat Infantry Badge. Medical treatment records dated in July 2015 reflect the Veteran was diagnosed with ET, which is also referred to as a myeloproliferative disorder. The Veteran was prescribed medication, i.e., Hydroxyurea, to manage this disorder. Report of the January 2016 VA examination confirms a diagnosis of ET. However, no etiological opinion was offered. In a statement dated in March 2016, the Veteran reported, in pertinent part, that on several occasions during his service in RVN, he "witnessed the spraying of 'defoliants' [] directly above." Further, the Veteran reported that on one occasion he "had to guard [the] water purification trucks for a week at a jungle stream which was in the midst of a defoliated area and smelled of []chemicals." A physician's statement by Dr. J.L. dated in August 2016, reflects, in pertinent part, that myeloproliferative disorder has been associated with exposure to the chemicals, i.e., Benzene, found in AO. Thus, she opined that the Veteran's myeloproliferative disorder could have been caused by his exposure to AO during his service in RVN. In November 2016, an amended statement was submitted to the Board wherein Dr. J.L. reiterated the association between myeloproliferative disorder and exposure to Benzene, and opined that the Veteran's myeloproliferative disorder was most likely caused by his exposure to AO during his service in RVN. In June 2017, the Board sought further clarification from a specialist through an outside medical opinion (OMO). The report of the July 2017 OMO reflects, in pertinent part, the physician's opinion that the Veteran's myeloproliferative disorder is less likely than not caused by AO exposure. In doing so, the physician indicated that this condition is biologically and clinically different than malignancies lymphoid progenitor cells such as non-Hodgkin's lymphoma, which is a disability VA regulations presumptively associate with exposure to herbicide agents. The physician cited to medical literature indicating the absence of a clinically significant association between AO exposure and the development of myeloproliferative disorders. In addressing the August and November 2016 statements by Dr. J.L., the physician acknowledged sporadic evidence of Benzene exposure in association with myeloproliferative disorders; however, commented that AO compounds consists of benzene rings as structural components, which are different than Benzene. In light of foregoing, the physician indicated it is unclear how much Benzene exposure an individual would actually receive by virtue of being exposed to AO. In response, the Veteran submitted an independent medical opinion (IMO) from a specialist dated in September 2017. The report of the September 2017 IMO reflects, in pertinent part, the physician's opinion that the Veteran's exposure to AO during his service in RVN is highly likely to have caused his myeloproliferative disorder, i.e., ET. In doing so, the physician indicated that Tetrachlorodibenzo (TCDD) is known to bind with certain receptors, which can lead to abnormal growth of blood stems cells, which is a potential mechanism for mutations in DNA associated with blood disorders such as MPD. He further indicated that TCDD can induce mutations in DNA called hypermethylation, and that hypermethylation is associated with myeloproliferative disorders. The physician acknowledged that individual susceptibility to TCDD is highly variable given genetic variations in people and may modulate toxicity; therefore, even low exposure in some individuals could potentially result in significant toxicity. He further acknowledged that indirect exposure to AO through aerial dispersion is unlikely to result in significant benzene exposure due to its rapid evaporation; however noted that more direct exposure, such as described by the Veteran, could certainly result in significant exposure to Benzene and related chemicals, which is recognized to be associated with myeloproliferative disorders and other hematologic malignancies. In addressing the June 2017 OMO, the physician indicated the difficulty in drawing any conclusions about the lack of a scientific association between TCDD exposure and myeloproliferative disorders given the lack of epidemiological evidence for an association between TCDD exposure and myeloproliferative disorders. In light of the foregoing, the physician concluded that it is highly probable that exposure to TCDD such as through AO could be a causal in development of myeloproliferative disorders, such as ET. Analysis As a preliminary matter, the Board notes the Veteran has verified in-country service in RVN, and was thus presumptively exposed to herbicide agents such as AO. However, while certain hematologic disorders are included among the listed disabilities under 38 U.S.C.A. § 3.309(e), myeloproliferative disorders such as ET, are not. Thus, the presumption afforded under this provision cannot provide a basis for a grant of service connection. Notwithstanding, consideration of whether a grant of service connection on a direct basis is warranted is still necessary in this case. See Combee, supra. Based on a review of the evidence, the Board finds that entitlement to service connection for ET as due to exposure to AO is not warranted in this case because the evidence fails to show a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. In making this finding, the Board accords significant probative weight to the June 2017 OMO. Here, the June 2017 OMO noted that myeloproliferative disorders are biologically and clinically different than malignancies lymphoid progenitor cells such as non-Hodgkin's lymphoma, which is a disability VA regulations presumptively associate with exposure to herbicide agents. The physician cited to medical literature indicating the absence of a clinically significant association between AO exposure and the development of myeloproliferative disorders. In addressing Dr. J.L.'s statements, the physician acknowledged sporadic evidence of Benzene exposure in association with myeloproliferative disorders; however, commented that AO compounds consists of benzene rings as structural components, which are different than Benzene. Based on current medical and scientific findings, the physician opined that the Veteran's myeloproliferative disorder is less likely than not caused by AO exposure. The Board acknowledges the November 2016 statement by Dr. J.L., which provided a positive nexus opinion. In that regard, the Board notes that in a statement dated in August 2016, Dr. J.L. opined that the Veteran's myeloproliferative disorder could have been caused by his exposure to AO during his service in RVN. Subsequently, in November 2016, Dr. J.L. amended her initial statement, in which she now opined that the Veteran's myeloproliferative disorder was most likely caused by his exposure to AO during his service in RVN. However, a statement in the record by the Veteran to his representative (also dated in November 2016) indicates that Dr. J.L. was requested to modify her original opinion per the representatives' recommendation. The Board finds this undermines the reliability of the medical opinion, and therefore it is afforded less probative weight. The Board also acknowledges the September 2017 IMO, which provided a positive nexus opinion. In that regard, the Board initially notes that the physician couched his rationale in conjectural verbiage. For instance, in support of his opinion that the Veteran's exposure to AO during his service in RVN is highly likely to have caused his myeloproliferative disorder, the physician noted that carcinogens such as TCDD could be a causal factor in development of myeloproliferative disorders, such as ET. However, the physician cited to no medical literature in support of this claim. Rather, he acknowledged the lack of epidemiological evidence for an association between TCDD exposure and myeloproliferative disorders. In fact, every one of the physician's statements concerning the effects of TCDD exposure was couched in speculative and generic terms, following which the physician made the leap, not justified by his discussion of TCDD exposure, that the TCDD exposure led to the Veteran's claimed condition. Not at any point in his discussion did the physician explain why, in the Veteran's particular case, TCDD exposure led to his claimed disorder. Instead, the physician spoke to generalities, and made unwarranted leaps from those generalities that are not borne out by any medical literature he relied on. Next, the Board notes the physician's claim that more direct exposure, such as described by the Veteran, could certainly result in significant exposure to Benzene and related chemicals. As mentioned, the Veteran has reported that he "witnessed the spraying of 'defoliants' [] directly above" him. Further, the Veteran reported that on one occasion he "had to guard [the] water purification trucks for a week at a jungle stream which was in the midst of a defoliated area and smelled of []chemicals." With respect to aerial exposure, the physician acknowledged that indirect exposure to AO through aerial dispersion is unlikely to result in significant benzene exposure due to its rapid evaporation. With respect to direct exposure, i.e., the Veteran's reports regarding guarding purification trucks, the physician noted that individual susceptibility to TCDD is highly variable given genetic variations in people and may modulate toxicity. The physician did not provide any opinion in regard to the Veteran's specific susceptibility to TCDD. Moreover, the physician did not address the June 2017 OMO's finding that AO compounds consists of benzene rings as structural components, which are different than Benzene. Although the physician asserted that he was somehow uniquely qualified to answer the medical questions involved in this case, the Board accords less probative weight to his opinions. The Board has considered the Veteran's statements, including that he was exposed to AO in greater quantities than those to which all soldiers serving in Vietnam are presumed to have been exposed. The Board first finds that the Veteran's competence to identify his exposure to defoliants or benzene is questionable. The Veteran contends, for example, that he noticed a chemical smell while guarding water purification trucks. The Board does not find that a layperson such as the Veteran is competent to identify whether this "chemical" smell is related to defoliants or to benzene. Moreover, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, questions of medical causation fall outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause of the Veteran's ET is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for ET due to exposure to AO. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for entitlement, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for ET is denied. REMAND Review of the record reveals the remaining claims must be remanded for further development prior to appellate consideration. With respect to the Veteran's claim of entitlement to an increased initial rating for an acquired psychiatric disability, the Board notes that the Veteran was last provided VA examination in March 2013. At his November 2016 hearing, the Veteran indicated his psychiatric symptoms have worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the evidence of worsening, the Board finds a remand is necessary to provide the Veteran with an additional examination. Additionally, the Board notes that at the November 2016 hearing, the Veteran indicated he received ongoing therapy with a counselor. He further indicated he previously authorized VA to obtain these records. Unfortunately, these records have not been associated with the record. Given that such records may have a bearing on the case, the Board finds an attempt to obtain these records is warranted. Additionally, the Board notes that the Veteran's claim for TDIU is inextricably intertwined with the issue of entitlement to an increased initial rating for an acquired psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). As such, the Board finds that remand will promote judicial economy and fairness to the Veteran. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding treatment records from VA treatment facilities. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any medical records relevant to his claim, including psychiatric treatment records the Veteran identified as receiving from Mr. Morrison. After securing the necessary information and releases, attempt to obtain an associate those identified treatment records with the record. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file, and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and severity of the Veteran's psychiatric disability. In particular, the examiner should document the current symptomatology described by the Veteran and the severity, frequency, and duration at which such symptoms manifest. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. 4. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran 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). ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs