Citation Nr: 1756947 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-24 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a myeloproliferative disorder, to include essential thrombocytosis and leukemia. REPRESENTATION Veteran represented by: Leann Baker, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran had active military service from April 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2012, the Veteran testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file. The Board remanded this matter for further development in March 2014 and October 2016. In June 2017, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a). The requested opinion, dated in July 2017, has been provided and associated with the Veteran's VA claims folder. FINDINGS OF FACT 1. The Veteran does not have leukemia. 2. The Veteran's diagnosed myeloproliferative disorder (diagnosed as essential thrombocytosis) did not have its onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for myeloproliferative disorder (diagnosed as essential thrombocytosis), to include as a result of herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in January 2010 and April 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Here, however, the Veteran was not diagnosed with myeloproliferative disorder or thrombocytosis until 2007, and there is no indication of myeloproliferative disorder or thrombocytosis or symptoms of either, prior to, during, or within one year of service. For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, a veteran who, during active military, naval, or air service, VA has adopted specific procedures to determine whether a veteran was exposed to herbicides in Thailand during the Vietnam era. VA's Adjudication Procedures Manual, M21-1MR, directs that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain military bases in Thailand, including the Royal Thai Air Force Base at Udorn. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). Certain specified diseases will be presumed service-connected due to herbicide exposure during service, if they manifest to a compensable degree at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The list of disabilities presumptively related to herbicides includes all chronic B-cell leukemias [including, but not limited to, hairy cell leukemia and chronic lymphocytic leukemia]. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Neither essential thrombocytosis nor myeloproliferative disorder is listed under 3.309(e); however, the medical evidence of record has referenced that the Veteran's medical history included leukemia. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran contends that his exposure to herbicides, such as Agent Orange, during his service in Thailand was the direct cause of his leukemia and/or myeloproliferative syndrome, diagnosed as essential thrombocytosis. Preliminarily, the Board notes that in the March 2014 Board decision, the Board conceded herbicide exposure. As such, the issue at hand is whether the Veteran has a diagnosis of leukemia that is presumed service-connected due to herbicide exposure during service pursuant to 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). If not, whether the Veteran's claimed disorder is otherwise related to his active service. Factual Background Treatment records furnished by the SSA noted increase in the Veteran's blood platelets. In October 1999, the Veteran's platelet count was 388, 000. In April 2001, the Veteran's blood platelet count was 448,000 and continued to increase. In May 2006, the Veteran's blood platelet count was 549,000. In April 2007, the Veteran's blood platelet was 729,000. In a June 2007 private treatment record from the Winthrop Oncology Hematology Associates, P.C., (WOHA), the reviewing provider noted the Veteran had a strong cardiac history with platelet counts elevated to over 600,000 on repeated occasions. The provider noted that overall, differential diagnosis between a reactive process versus a primary myeloproliferative disorder such as essential thrombocytosis in view of the Veteran's extensive history of vasculopathy and that it would be important to resolve this as there was no major risk from reactive thrombocytosis in increasing his risk of blood clots but a myeloproliferative disorder was a completely different matter. A June 2007 WOHA lab report noted that the quantitative RT-PCR assay was negative for the b2a2 and b3a2 and e1a2 fusion gene transcripts found in chronic myelogenous leukemia and Philadelphia positive acute lymphocytic leukemia. However, the report also noted that these results did not rule out the presence of low levels of BCR-ABL1 transcript below the level of detection of this assay, or the presence of rare BVR-ABL1 transcripts not detected by this assay. In an October 2009 WOHA treatment record, the provider noted that the Veteran's platelet counts had been between 700,000 and 850,000 and that the Veteran was clearly suffering from a myeloproliferative disorder. A December 2009 treatment record from Island Cardiac Specialist (ICS) noted diagnoses of essential thrombocytosis/myeloproliferative disorder/polycythemia vera. A January 2010 treatment record from Memorial Hospital for Cancer and Allied Diseases (MHCAD) noted an initial consultation for the Veteran who was present with thrombocytosis. The record noted that historically, records from July 1992 showed a platelet count of 341,000, but starting in 2001 and moving forward, the Veteran had platelet counts that rose into the 400s, 500s, and 600s. The record noted this issue was ultimately addressed and the Veteran transferred his care to Dr. Mossman, who performed a routine complete blood count (CBC) on April 3, 2007 which showed a platelet count of 721,000. The record noted that based on these findings, the Veteran was referred to a hematologist/oncologist at WOHA and on June 11, 2007, a CBC showed platelet count of 625,000 and the hematologist/oncologist at WOHA felt the Veteran had primary myeloproliferative disorder. The record noted the Veteran was doing well on expectant monitoring until approximately October 2009 when he developed pain in his left upper quadrant of his abdomen. The Veteran was subsequently prescribed medication. At the time of the January 2010 evaluation, the Veteran reported continued discomfort in his left upper quadrant and that he had been particularly fatigued over the last three to four months, sleeping ten hours nightly. After evaluation, the MHCAD provider noted an impression that the laboratory studies suggested a high likelihood of diagnosis of myeloproliferative neoplasm such as essential thrombocythemia or polycythemia vera. The MHCAD provider explained that the left upper quadrant discomfort could represent a splenic infarction secondary to his disease. A February 2010 CT scan report from MHCAD included a clinical statement of leukemia with left upper quadrant pain. The report noted an impression of mild splenomegaly. An April 2010 MHCAD record noted an impression that the Veteran had a myeloproliferative neoplasm that was most consistent with essential thrombocythemia and that over the course of the past three months, his abdominal pain had resolved and that a CT scan found no evidence of splenic disease. The provider noted that molecular genetic testing confirmed the presence of mutation in JAK-2 and that normal allele was also present which was also consistent with the diagnosis of essential thrombocythemia. The record noted that over the past three months, there had been a modest increase in the platelet count. Furthermore, the provider noted his discussion with the Veteran about the placement of essential thrombocythemia in the groups of chronic leukemias that were formally described as myeloproliferative neoplasms. In an April 2014 letter from the Veteran's private physician, Chief of Leukemia Service at the Memorial Sloan-Kettering Cancer Center (MSKCC), noted the Veteran was diagnosed with myeloproliferative disorder characterized by essential thrombocytopenia which is a blood disorder associated with an elevation in platelet count. The provider noted the Veteran was receiving treatment with Hydrea to keep his platelet count controlled to prevent blood clotting and that the Veteran was also found to have JAK-2 mutation associated with the diagnosis. The provider noted there was a risk that the Veteran's condition could transform to acute leukemia. Treatment records from ICS from November 2014 to December 2015 noted the Veteran's medical history included leukemia and that the Veteran was followed by MSKCC for his leukemia. However, there was no actual diagnosis of leukemia given by the ICS reviewing providers. In March 2016, the Veteran was provided a VA examination. The examiner diagnosed essential thrombocythemia and noted the date of diagnosis as 2007. The examiner noted that after a review of the Veteran's claims file and after review of recent literature regarding the possible association of JAK-2 V617F mutation of essential thrombocythemia and exposure of Agent Orange, the examiner was not able to identify evidence to support such an association. As a result, the examiner opined that it was less likely than not that the Veteran's diagnosed disorder was related to his in-service herbicide exposure. The examiner referenced numerous medical literatures in support of the opinion. In a December 2016 VA examination addendum opinion, the examiner (the same examiner who performed the March 2016 VA examination) noted the Veteran had a diagnosis of essential thrombocythemia (ET), JAK-2 positive V617[F] mutation, characterized by increased platelet counts, diagnosed in 2007 that was managed with oral hydroxyurea 500 milligram (mg) twice daily. The examiner explained that ET is a myeloproliferative neoplasm characterized by thrombocytosis and specifically indicated the Veteran did not have a current diagnosis of leukemia or a chronic B-cell leukemia. The examiner ultimately opined that the Veteran's disorder was less likely than not incurred in or caused by active service. The examiner referenced numerous medical literatures in support of the opinion. In an effort to further clarify whether the Veteran had a diagnosis of chronic B-cell leukemia, the Board referred this case to the VHA to obtain a medical opinion from an appropriate health care professional. The record reflects that the VHA sent the request out to the Nashville, Tennessee VA Healthcare System to obtain an opinion from a VA medical expert. In a July 2017 response, the selected physician, A.B.W., M.D., Section Chief Hematology and Oncology, determined that the Veteran had no evidence in his record of a B-cell malignancy. The VHA examiner noted that as referenced by the December 2016 VA examiner, the Veteran's diagnosis of ET was a myeloid disorder that can lead in a few cases to an acute myeloid leukemia, unrelated to B-cell leukemias and that there was no evidence that his ET had become acute myeloid leukemia. The VHA examiner reiterated that there is no connection to myeloproliferative neoplasms and chronic B-cell leukemia and there is no published scientific evidence demonstrating that herbicides lead to myeloproliferative neoplasms. As a result, the VHA examiner opined that it was very unlikely, less than 50 percent, that the Veteran's military service caused or increased his risk of the present diagnosis of essential thrombocythemia. The VHA examiner noted that if there was evidence that the Veteran was exposed to high levels of radiation or had a major exposure to hydrocarbon product, that these might have increased his risk. However, the VHA examiner found no such evidence in the records. Analysis As noted above, myeloproliferative disorder, diagnosed as essential thrombocythemia, is not on the list of diseases associated with herbicide exposure for purposes of the presumption for service connection. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. The most probative evidence of record, namely the December 2016 VA examination and the July 2017 VHA opinion, have specifically found that the Veteran did not have a B-cell leukemia, and the July 2017 VHA examiner also clarified that although ET is a myeloid disorder that can lead to an acute myeloid leukemia, acute myeloid leukemia is unrelated to B-cell leukemias, thus further supporting there is no link between the Veteran's current diagnosis of ET to a presumptive disease of a B-cell leukemia. Therefore, service connection cannot be granted on a presumptive basis. The Board acknowledges that the evidence of record has made references to a medical history of leukemia. Specifically, a February 2010 CT scan report referenced in a clinical statement of "leukemia with left upper quadrant pain." The report noted an impression of mild splenomegaly. Additionally, an April 2010 MHCAD provider noted placement of essential thrombocythemia in the groups of chronic leukemias that were formally described as myeloproliferative neoplasms. Treatment records from ICS November 2014 to December 2015 also noted the Veteran's medical history included leukemia. However, on further review of the claims file, there was not a formal diagnosis of leukemia presented. Instead, the records have indicated otherwise. Specifically, a June 2007 WOHA lab report revealed the Veteran was negative for particular gene transcripts found in chronic myelogenous leukemia and Philadelphia positive acute lymphocytic leukemia. The Board also notes that subsequent to the February 2010 CT scan report from MHCAD noting leukemia in a clinical statement, another treatment record from MCHAD in April 2010 failed to note a formal diagnosis of leukemia, only indicating vaguely of a discussion with the Veteran about the placement of essential thrombocythemia in the groups of chronic leukemias that were formally described as myeloproliferative neoplasms, not specifically that his diagnosis of ET has become leukemia. Furthermore, the Veteran's treating ET provider at MSKCC noted in April 2014 that the Veteran's diagnosis of myeloproliferative disorder characterized by ET could transform to acute leukemia, not that the Veteran's ET had transformed into leukemia. Moreover, the only adequate medical opinions to address the probability of a medical relationship between the Veteran's current diagnosis of ET and service weigh against the claim and have specifically found there is no diagnosis of leukemia. The December 2016 VA examination addendum opinion and the July 2017 VHA opinion, reiterated that ET can lead in a few cases to an acute myeloid leukemia. However, the VHA examiner noted there was no evidence that the Veteran's ET had done so. Both the December 2016 VA examiner and the July 2017 VHA examiner indicated the Veteran did not have a diagnosis of leukemia and that there was no published scientific evidence demonstrating herbicides led to myeloproliferative neoplasms. As such, the July 2017 VHA examiner opined that it was very unlikely, less than 50 percent, that the Veteran's military service caused or increased his risk of the present diagnosis of essential thrombocythemia. The VHA examiner further explained that there was no evidence the Veteran was exposed to high levels of radiation or had a major exposure to hydrocarbon product that might have increased his risk. The Board finds that the July 2017 VHA opinion, further supported by the December 2016 VA examiner's opinion and reference to medical literatures, constitute competent, probative, and persuasive evidence that is based on review of the Veteran's documented medical history. The examiner provided a rationale based on an accurate discussion of the evidence of record. The Board also acknowledges the Veteran's statements that his current diagnosis of ET is due to his conceded herbicide exposure during active service. To the extent the Veteran himself sincerely believes that his ET is related to service, the Board finds his diagnosis of ET, a myeloid disorder, is not the type that is readily observable to a layperson. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, the Board finds he is not competent to determine the disorder's etiology. The Veteran is certainly competent to report experiencing symptoms related to the disorder, but he is not competent to ascribe any symptoms to a particular diagnosis or, in turn, relate it to his military service, especially when, as here, there is countervailing medical comment. Even if he were so competent, the Board finds that the probative value of his opinion is outweighed by that of the December 2016 VA examiner and July 2017 VHA examiner, who are medical professionals and whose education, training and experience clearly exceeds those of the Veteran. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. The Board finds that the most persuasive evidence of record shows that the diagnosed ET, a myeloproliferative disorder, is not related to service, to include herbicide exposure. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for ET, a myeloproliferative disorder, and that claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for ET, a myeloproliferative disorder, is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs