Citation Nr: 1800396 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-09 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic myeloid leukemia, to include as secondary to herbicide exposure, on the basis of substitution. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In that decision, the RO denied the Veteran's claim of entitlement to service connection for chronic myeloid leukemia, including as due to herbicide exposure. The Veteran testified before a VLJ no longer with the Board at a September 2014 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims file. The case is now assigned to the undersigned. In January 2010, the January 2009 rating decision became final, and in a June 2010 rating decision, the RO denied a petition to reopen the claim for new and material evidence. The June 2010 denial was appealed, and the Board reopened the claim in a May 2015 decision. In the same decision, the Board also remanded the matter at bar for further development, to include obtaining a VA examination. During the pendency of this appeal, the Veteran passed away in October 2015. That same month, the Veteran's spouse submitted a claim for substitution, for the purposes of this pending appeal. 38 U.S.C. § 5121A (2012). In July 2016, the RO found that the appellant could be properly substituted as the claimant for the claim currently on appeal. FINDING OF FACT Chronic myeloid leukemia (CML) did not have its onset in service or within one year thereafter, and has not been etiologically linked to the Veteran's service or any incident therein, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for CML have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria and Analysis 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. § 1110; 38 C.F.R. § 3.303. "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 for at least 90 days during a period of war and manifests certain chronic diseases, such as leukemia, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). For veterans who served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, service connection may be granted for specific disabilities associated with exposure to herbicide agents, including chronic B-cell leukemias. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a). A Veteran must have been present on the landmass or inland waterways of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure. Haas v. Peake, 525 F.3d 1168, 1193, 1197 (2008). Service on a deep-water naval vessel in waters off the shore of Vietnam does not constitute service in the Republic of Vietnam. Id. at 1193-97. Notwithstanding the foregoing, a Veteran may establish service connection with proof of direct causation. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v, 1 Vet. App. 49, 53. The appellant contends that the Veteran's CML is the result of his exposure to herbicide agents while serving in the United States Navy in the Vietnam Era. The Veteran's service records show that he served in blue waters off the coast of Vietnam from November 1966 to February 1968. Presumption Based on Herbicide Exposure It is contended that the Veteran was exposed to herbicides while he served in the waters off the coast of Vietnam. However, the evidence of record is conflicting. The Veteran testified in his September 2014 hearing that he served in country in Vietnam, and was "saturated and soaked in [Agent Orange]." See hearing transcript. Specifically, he stated that Agent Orange was transported in barrels on the Navy vessel he was assigned to, the U.S.S. Diamond Head, and the barrels were damaged and burst open during a two-week typhoon. He further stated that he had to clean the mess aboard the ship, and that also, aircraft frequently flew overhead, spraying Agent Orange. See id. The Board also acknowledges the submission by the Veteran's widow, the current claimant, of a July 2012 correspondence from the VA Health Eligibility Center, which notes that the Veteran was "determined to be a Vietnam-era herbicide-exposed Veteran." The aforementioned document, however, does not constitute an adjudication or an official VA finding. Rather, it is a form letter that was sent for the purpose of informing the Veteran regarding his eligibility for health benefits. The Board also notes that there is a May 2009 memorandum of record from the Joint Services Records Research Center (JSRRC) regarding the Veteran's claimed exposure to Agent Orange in service. Specifically, the memorandum indicates that there is no evidence that any Navy or Coast Guard ships transported tactical herbicides. In addition, the JSRRC found no documentation and could not otherwise verify that a shipboard Veteran was exposed to herbicides based on contact with flyover aircraft. In another memorandum requested from the JSRRC in January 2011, it was detailed that the deck logs of the Veteran's ship reflect no evidence of operations in the inland waterways of Vietnam. See also JSRRC Memorandum of December 2016. The Board acknowledges the statement from M.D.C. received by VA in April 2011, in which he stated that he was also aboard the U.S.S. Diamond Head with the Veteran and remembers that ruptured Agent Orange barrels resulted in their being soaked from head to toe. Another statement from B.G. dated in April 2012 conveys that he was part of the ship's crew along with the Veteran, and that a typhoon in September 1967 resulted in the ship anchoring in a Japanese harbor. While two-thirds of the crew were missing, B.G. stated, a chemical rocket motor ignited and sprayed flames on a stack of 2000-pound bombs. In a follow-up letter, B.G. describes an undated incident when the ship had "what appeared to be 55 gallon drums of Agent Orange," one of which spilled and had to be cleaned up. Based on the aforementioned evidence, the Board finds that the Veteran's exposure to Agent Orange is not established. The Board finds that the most probative evidence of record is the research conducted by the JSRRC, as it is based on a review of the deck logs and official military records. Furthermore, the lay evidence of record is conflicting. While the Veteran and M.D.C reported that there were multiple ruptured Agent Orange barrels onboard the ship which had to be cleaned, B.G. reported that there were 55 gallon drums aboard the ship, only one of which spilled, and which merely "appeared" to have been Agent Orange. In addition, the official report from JSRRC which indicates that there is no evidence to suggest that naval vessels ever transported Agent Orange is in direct conflict with the lay statements of record. Thus, absent further evidence of exposure, presumptive service connection based on exposure to herbicides cannot be claimed. Regardless of the fact of the Veteran's alleged Agent Orange exposure, however, CML is not a disability presumed to be due to such exposure. 38 C.F.R. §§ 3.307(a). In this regard, the Board notes that the Veteran also reported having been diagnosed with chronic lymphocytic leukemia (CLL). See September 2014 hearing. CLL is a B-cell leukemia, which is one of the presumptive conditions listed under 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In May 2015, the Board remanded the Veteran's claim for further development, to include obtaining missing records and a VA medical opinion as to whether any leukemia the Veteran has been diagnosed with was a B-cell leukemia. The requested examination was completed in December 2016, at which time the examiner conducted a review of the entire claims file as well as all newly associated evidence and concluded that the Veteran had not been diagnosed with a chronic lymphocytic or B-cell leukemia. In reaching this conclusion, the examiner noted that a July 2007 VA treatment note documented that a bone marrow and blood test confirmed the presence of a Philadelphia chromosome, and the Veteran was diagnosed with Philadelphia chromosome CML. A May 2015 VA oncology note similarly documented that the Veteran's diagnosis was that of Philadelphia chromosome positive CML. The examiner concluded that the only leukemia the Veteran had experienced during his lifetime was CML, not CLL. There is no diagnosis of CLL in the record, and the Veteran's lay statements constitute the only mention of CLL. Furthermore, the December 2016 VA examiner indicated that she reviewed the entire claims file. When addressing whether any leukemia the Veteran had been diagnosed with was a chronic B-cell leukemia, the examiner indicated that it was clear the Veteran had only been diagnosed with Philadelphia chromosome positive CML. The examiner stated that the CML diagnosis remained unchanged. She pointed to multiple instances of advanced testing, including a July 2007 bone marrow aspirate and peripheral blood test, and August 2007 pathology testing which concurred with the diagnosis of CML. Indeed, the examiner also pointed to a repeat bone marrow aspirate conducted in January 2008 which confirmed the same diagnosis, as well as the May 2015 VA oncology note which also confirmed the Veteran's CML. Finally, the examiner stated that it is unclear why the Veteran reported a diagnosis of CLL, as there is simply no evidence in private or VA treatment records of any type of leukemia other than CML. The Board finds that even giving all due credence to the Veteran's statement that he has a CLL diagnosis, the Veteran as a layperson was not competent to diagnose cancer or distinguish between varying types of leukemia, and this lay evidence is outweighed by the medical evidence of record as described above, which has been clear and consistent. Therefore, even if the Board did find that the Veteran had been exposed to a herbicide agent, service connection on a presumptive basis would remain unwarranted. Direct Service Connection While service connection may not be granted on a presumptive basis for the Veteran's CML, the appellant is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The appellant does not claim that the Veteran's CML had its onset in service or within one year of his discharge from service, nor does any of the evidence show that his diagnosed CML had its onset either in service or within one year of his discharge from service. Moreover, as noted in the December 2016 VA examination, the Veteran's CML was not a B-cell leukemia. Service treatment records do not show any relevant complaints, treatment, symptoms or diagnoses. There is no medical evidence of CML until 2007, 36 years after the Veteran's separation from service. This weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Additionally, there is no competent medical evidence or opinion that the Veteran's CML was related to service or any incident therein, to include his claimed exposure to herbicide agents. In that connection, the Board notes that VA treatment records have indicated consistently that the Veteran's CML was first noted in 2007. In July 2007, the Veteran was started on treatment. A bone marrow biopsy in January 2008 revealed a complete cytogenic response. The Veteran had a major molecular response shown in February 2011 blood tests. See November 2014 VA treatment note. Furthermore, the Board notes that all VA treatment notes of record which document the Veteran's medical history do not document CLL. Rather, CML is noted profusely. In this regard, the opinion of the December 2016 VA examiner that the Veteran's CML was less likely than not incurred in or related to his service, including any possible exposure to herbicide agents, is of significant probative weight; notably, the VA physician reviewed all the evidence of record and considered the Veteran's lay statements regarding his in-service exposure to herbicide agents, post-service symptoms, and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner further provided an extensive rationale for her opinion, noting that CML has genetic predisposition, and risk factors include age. Furthermore, the examiner reported that medical literature does not include exposure to herbicides as an etiology for CML. Importantly, the Board notes that this opinion is uncontradicted by any medical evidence of record. Consequently, the Board finds the probative, competent evidence does not demonstrate that the Veteran's CML is causally or etiologically related to active duty or any incident therein. The Board acknowledges the sincere assertions of the Veteran and the appellant that he had leukemia which was caused by or a result of his service, and specifically exposure to herbicide agents while serving in Vietnam. The Board also acknowledges the appellant's assertions that the Veteran served in Vietnam and was determined to have been exposed to herbicides. However, the Veteran and appellant, as lay persons, have not been shown to be capable of rendering medical conclusions, especially as to complex medical diagnoses such as CML, or opining as to a link to service or exposure to herbicide agents. For a diagnosis or an etiological opinion as to an internal disease process such as CML to be competent and probative, training and credentials in the field of medicine are essential. Thus, the Veteran's and appellant's statements and testimony regarding any link to service are not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no competent medical evidence of record that relates the Veteran's diagnosed CML to service or to his claimed exposure to herbicide agents during service. The Board thus finds that the preponderance of the evidence weighs against the claim for service connection for leukemia, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for leukemia, to include as due to herbicide exposure, is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs