Citation Nr: 1754594 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-00 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Service connection for chronic myelomonocytic leukemia, to include as a result of herbicide-agent exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1963 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnestota. The Veteran testified before the Board at an August 2017 videoconference hearing; a transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and was presumptively exposed to herbicide agents. 2. Granting the Veteran the benefit of the doubt, chronic myelomonocytic leukemia was at least as likely as not etiologically related to in-service herbicide-agent exposure. CONCLUSION OF LAW The criteria for the establishment of service connection for chronic myelomonocytic leukemia have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that service connection is warranted for chronic myelomonocytic leukemia (CMML) as it was incurred due to the Veteran's herbicide-agent exposure during active service in the Republic of Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: '(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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is required to consider and discuss all relevant evidence on both sides of the issue. Evans v. West, 12 Vet. App. 22, 30 (1998). Under the "benefit-of-the-doubt" rule, where an approximate balance of positive and negative evidence exists regarding the merits of an issue material to the determination of a matter, the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 -57 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Turning to the facts of the case, the Board finds that the record establishes the first element of a service connection claim: a current disability. A private physician confirmed in a September 2017 letter that the Veteran had been diagnosed with CMML. The record therefore demonstrates a current disability. With regard to the second element of a service connection claim (an in-service injury), the Board finds this element is also established. VA presumes herbicide exposure for any veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. The Veteran's service in Vietnam during this period is verified in the record; his exposure to herbicides is therefore presumed and he meets the requirement of an in-service injury. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. As to the third element, VA regulations presume service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309, but CMML is not included in the list of presumed conditions. Granting the Veteran the benefit of the doubt, however, the Board finds that the medical evidence establishes a direct link between the Veteran's in-service exposure to herbicide agents and CMML. In a September 2017 letter, the Veteran's private physician wrote that "it is more likely than not" that the Veteran's exposure to herbicide agents contributed to the development of CMML. In reaching this opinion, the physician referenced the fact that CMML is not known to be hereditary and that "Nothing in the Veteran's medical history, family history, social history, or occupational history has been identified to contribute to his CMML, other than [herbicide-agent exposure]." The Board notes that this same physician in previous letters provided less certain opinions, stating in December 2016 that herbicide-agent exposure "may have been a contributory factor" to the Veteran's CMML. The same physician also wrote in April 2017 that "[herbicide-agent] exposure may have been a contributory factor - though research has not established a definitive causative relationship yet." Granting the Veteran the benefit of the doubt, the Board gives greater weight to the September 2017 opinion finding herbicide-agent exposure more likely than not contributed to the development of CMML. Accordingly, service connection is warranted. ORDER Service connection for chronic myelomonocytic leukemia is granted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs