Citation Nr: 1722511 Decision Date: 06/16/17 Archive Date: 06/29/17 DOCKET NO. 17-09 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (claimed as bone cancer, leukemia, and lymphoma), as due to exposure to various chemicals during service, including benzene. 2. Entitlement to service connection for prostate cancer, as due to exposure to various chemicals during service, including benzene. 3. Entitlement to service connection for skin cancer, to include small cell carcinoma of the scalp, as due to exposure to various chemicals during service, including benzene. 4. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION 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 Veteran served on active duty from June 1958 to April 192. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's initial claim for VA compensation benefits specifically requested service connection for: (1) bone cancer; (2) leukemia; (3) lymphoma; (4) prostate cancer; (5) skin cancer; (6) small cell carcinoma; and (7) SMC based on aid and attendance/housebound. The medical evidence of record shows that the Veteran has a confirmed diagnosis of chronic lymphocytic leukemia (CLL), which involves cancer cells that are found in the blood and bone marrow and develop in the lymph nodes. As such, the Board finds that the Veteran's claims for bone cancer, leukemia, and lymphoma are appropriately considered under the confirmed diagnosis of CLL. Accordingly, those issues have been characterized as reflected on the title page. The issues of (1) service connection for prostate cancer, as due to exposure to various chemicals during service, including benzene; (2) service connection for skin cancer, to include small cell carcinoma of the scalp, as due to exposure to various chemicals during service, including benzene; and (3) entitlement to SMC based on aid and attendance/housebound are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran was exposed to various chemicals during service, including benzene. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that the currently diagnosed CLL is etiologically related to his active duty service, to include benzene exposure. CONCLUSION OF LAW The criteria for service connection for chronic lymphocytic leukemia (claimed as bone cancer, leukemia, and lymphoma), as due to exposure to benzene, have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The condition of CLL (i. e., a form of leukemia), is a "chronic disease" listed under 38 C.F.R. § 3.309 (a) (2016); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for CLL The Veteran asserts that during his years of active duty service, he performed various duties that exposed him to several chemicals, including benzene, which caused him to develop CLL. In his February 2017 substantive appeal, the Veteran indicated that, while serving on the USS Talbot and USS Saratoga, he was instructed to paint and remove paint off the bottom of ships while in dry dock. He also indicated that he performed these same duties inside the ship, often in small, confined spaces with little ventilation. He reported that he worked 8 hours or more a day around red oxide paint (which contained lead), asbestos from debris, and benzene found in, among other things, oil and paint thinners. The Board finds that the Veteran's DD-214 reflects that he was a radioman (RM-0000) in the Navy and that his last duty assignment and major command was with the USS Talbot County. Given the Veteran's credible statements (as described above) regarding his duties while serving on the USS Saratoga and Talbot, the Board finds that he was likely exposed to chemical agents, including oil, gasoline, paint, and paint thinners as these were common chemicals used in operating and maintaining U. S. Naval ships. Benzene is used mainly as a starting material in making other chemicals, including plastics, lubricants, rubbers, dyes, detergents, drugs, and pesticides. In the past, it was also commonly used as an industrial solvent (a substance that can dissolve or extract other substances) and as a gasoline additive. It is also a natural part of crude oil and gasoline. See https://www.cancer.org/cancer/cancer-causes/benzene.html. As such, because benzene is noted to be a natural part of the chemicals that the Veteran was likely exposed to during service, the Board finds that the Veteran was exposed to benzene as this exposure is consistent with the circumstances of his service. 38 U.S.C.A. § 1154. Although service treatment records only include a service entrance examination and a March 1962 Report of Medical Examination, both of which are absent for any findings of CLL, the Board notes that the Veteran has not maintained that his CLL disorder first manifested in service. Instead, he contends that his CLL developed later, but as a result of in-service benzene exposure. Post-service VA treatment records confirm a diagnosis of CLL. The evidence also includes a March 2017 medical opinion from Dr. N. A. The report indicated that the doctor had reviewed the Veteran's treatment records since service separation. Confirmed diagnoses included CLL and prostate cancer. Dr. N. A. then opined that the Veteran's CLL was at least as likely as not caused or a result of benzene exposure. In support of this opinion, Dr. N. A. indicated that exposure to benzene had been associated with increased risk of developing leukemia, including CLL. According to the Veteran, he was regularly exposed to benzene in service. The Board further notes that there are no other medical opinions of record addressing the etiology of the Veteran's current CLL. The Veteran has not been afforded a VA examination and medical opinion addressing the etiology of his CLL. However, the Board finds that given the positive and competent medical evidence already of record, a VA examination is not needed to decide this claim on the merits. Thus, given the competent private medical opinion and the credible lay evidence of exposure to benzene during service that resulted in the likely development of CLL, reasonable doubt is resolved in the Veteran's favor. As such, service connection is warranted, and the claim is granted. 38 C.F.R. §§ 3.102. ORDER Service connection for chronic lymphocytic leukemia (claimed as bone cancer, leukemia, and lymphoma), as due to exposed to various chemicals during service, including benzene, is granted. REMAND Regarding the claims for service connection for prostate cancer and skin cancer, as due to exposure to various chemicals during service, including benzene, the Board finds that a remand is warranted. VA treatment records show that the Veteran has been diagnosed with prostate cancer and small cell carcinoma of the scalp. The Board has also found that the Veteran was exposed to chemicals in service, to include benzene. As such, a medical opinion should be obtained in order to assist in determining the likely etiology of the Veteran's disorders. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, he Veteran's claim for SMC based on the need for aid and attendance/housebound is inextricably intertwined with the claims for service connection for prostate and skin cancer which are being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's currently diagnosed prostate and skin cancers. The relevant documents in the claims file should be made available to the VA examiner. The examiner is asked to address the following: (a) For each diagnosis (i. e., prostate cancer and small cell carcinoma of the scalp), state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's cancers were incurred in service or are causally or etiologically related to service. (b) The examiner should assume that during service, the Veteran was exposed to paint, paint thinners, oil, and gasoline some of which contained benzene. (c) All opinions are to be accompanied by a rationale consistent with the evidence of record. NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Then adjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, 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). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs