Citation Nr: 1754447 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-02 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for leukemia, to include the question of whether new and material evidence has been received to reopen the claim. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his daughter, A.B. ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active service from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln., Nebraska. The Veteran's claims file is now in the jurisdiction of the Milwaukee RO. In April 2017, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. FINDINGS OF FACT 1. The last final February 2009 rating decision denied service connection for leukemia based on a finding that it was unrelated to the Veteran's service. 2. Evidence received since the February 2009 rating decision includes a medical letter attributing the Veteran's leukemia to herbicide exposure; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. The Veteran has leukemia related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for leukemia may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 2. Service connection for leukemia is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable action taken herein, no further discussion of the VCAA is required. The Veteran's claim of entitlement to service connection for myelogenous leukemia and non-Hodgkin's lymphoma was denied in June 2001 on the basis that the Veteran was not exposed to herbicides and leukemia was not related to service. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.1103 (2017). A February 2004 rating decision also denied the claim and was not appealed. A February 2009 rating decision, issued under Nehmer v. Department of Veterans Affairs, again denied service connection due to no nexus and was not appealed. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.200 20.1100, 20.1103, 20.1104 (2017). However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the last final February 2009 rating decision, the Veteran testified before the Board and provided an additional medical statement attributing his leukemia to service. As this evidence was submitted after the final February 2009 rating decision and relates to the lacking element of a nexus to service, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for leukemia is reopened. Moreover, for the reasons discussed below, the Board finds service connection for leukemia is warranted. Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Certain chronic diseases (including leukemia) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for leukemia). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Certain diseases (including all chronic B-cell leukemias and non-Hodgkin's lymphoma) may also be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure in service if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309 (e) to be applicable. Here, the Veteran's exposure to herbicides has previously been conceded due to his duties on or near the perimeter of a military base in the Republic of Thailand. See July 2012 rating decision. In a January 2011 VA opinion, an examiner stated the Veteran had chronic myelogenous leukemia (CML), which is not a B-cell or hairy cell leukemia. While the examiner noted CML is not a leukemia for which a presumption is available due to herbicide exposure, she did not provide an etiological opinion for the CML. In a letter dated July 2013, the Veteran's hematologist-oncologist noted he was originally diagnosed with chronic myelogenous leukemia, which progressed to lymphoblastic lymphoma. The doctor stated it was his medical opinion that there was a causal relationship between his CML and acute lymphoblastic lymphoma and his Agent Orange exposure. The doctor noted the Veteran's diagnosis and disease progression is very rare and indicative of a direct causal relationship with his herbicide exposure. Therefore, after this review of the evidence, resolving all reasonable doubt in the Veteran's favor, the Board grants service connection for leukemia on a direct basis. ORDER New and material evidence has been received to reopen the claim for service connection for leukemia. Entitlement to service connection for leukemia is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs