Citation Nr: 18142657 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 13-31 945 DATE: October 16, 2018 ORDER Entitlement to service connection for anemia, to include as due to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents while on active duty. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has anemia that was incurred in or otherwise the result of his active service, to include presumed exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for service connection for anemia are not met, to include as due to exposure to herbicide agents. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1964 to December 1966, to include service in the Republic of Vietnam, and again from April 1972 to June 1981. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2010 rating decision, the RO denied service connection for degenerative arthritis of left knee joint; left knee strain, chondromalacia with slight medial/lateral instability medial compartment narrowing (claimed as bilateral knee condition) and service connection for degenerative arthritis of right knee joint; right knee strain, chondromalacia with slight medial/lateral instability medial compartment narrowing (claimed as bilateral knee condition). In June 2011, the Veteran submitted a notice is disagreement (NOD) for the August 2010 rating decision. The Veteran argued that he was entitled to service connection for his bilateral knee disabilities. During the pendency of the appeal, the RO granted service connection for degenerative arthritis of left knee joint; left knee strain, chondromalacia with slight medial/lateral instability medial compartment narrowing (claimed as bilateral knee condition) and service connection for degenerative arthritis of right knee joint; right knee strain, chondromalacia with slight medial/lateral instability medial compartment narrowing (claimed as bilateral knee condition), which is a full grant of the benefits sought on appeal; therefore, the issues are not before the Board. See July 2018 rating decision. 1. Anemia Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, certain disorders associated with exposure to herbicide agents in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 C.F.R. §§ 3.307, 3.309. Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, 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)(6)(iii). The August 2010 rating decision indicates that the RO was verified the Veteran’s Vietnam service from June 1, 1965 to July 1, 1966. Therefore, the Veteran is presumed to be exposed to herbicide agents while on active duty. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran contends that service connection for anemia is warranted. He asserts that his condition is due to his Agent Orange exposure during his military service. Service treatment records are negative for treatment for anemia or a diagnosis of anemia. Post service medical evidence demonstrates treatment for anemia and a diagnosis of anemia. An April 2009 VA Agent Orange examination report documented that the Veteran was diagnosed with anemia. In July 2010 the Veteran was afforded a VA examination. The Veteran reported that he was diagnosed with severe anemia (abnormal blood count). He indicated that he had this condition since 1964. He reported that as a result of the Veteran’s hematological condition, the Veteran had headaches, easy fatigability, easy bleeding and stayed cold. For the Veteran’s blood disease, he did not receive any treatment such as blood transfusions, myelo-suppressant therapy, or bone marrow transplant. The examiner diagnosed the Veteran with anemia. The examiner opined that the Veteran’s anemia was less than likely related to an in-service injury, event, or injury. The examiner concluded that it was less than likely because there was no available pertinent in-service medical evidence of record (MER) referencing anemia. In August 2016, the Veteran testified that he was stationed in Vietnam. He stated that while in Vietnam the weather was really warm but he was always cold. He indicated that he was diagnosed with anemia in 2011 by VA doctors. The Veteran stated that he had a VA Agent Orange examination and the VA doctors linked his condition to his military service. In November 2017, the Board remanded this issue to obtain additional medical records and an April 2009 VA Agent Orange registry examination report. Also, to obtain a VA examination and opinion regarding the nature and etiology of the Veteran’s anemia. In February 2018, the Veteran was afforded a VA examination. The Veteran reported that he was cold all the time. He indicated that he was first informed he had anemia at a VA checkup in 2011. The Veteran’s symptoms included occasional dizziness and feeling cold all the time. The Veteran was prescribed iron in the past and was suggested to have a transfusion in 2005. The Veteran had occasional light headedness once every 3 months lasting a few seconds. The Veteran was diagnosed with anemia. The examiner reviewed the Veteran’s claims file. The examiner concluded that the currently diagnosed anemia was less likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that there was no reference to an anemia diagnosis in sick call notes provided. He stated, “anemia was mentioned in notes from VA primary care clinic, but the anemia present was extremely mild, not enough to produce significant symptoms of fatigue, and could be correlated with the Veteran’s self-reported history of at least one episode of gastritis with upper GI bleeding related to NSAID use.” He concluded that it was less likely than not that the currently diagnosed anemia had its onset in service, or was otherwise related to service, to include as due to herbicide agent exposure, or was manifest to a compensable degree within one year of service. After a review of the evidence, the Board finds that service connection for anemia is not warranted. The Board finds that presumptive service connection for anemia due to herbicide exposure is not warranted. Anemia is not included in the list of presumptive diseases associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Therefore, service connection for anemia is not warranted on a presumptive basis due to exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Additionally, although primary anemia is listed under 38 C.F.R. § 3.309 (a) as a chronic disease, there is no showing that anemia was manifest to a degree of 10 percent or more within the first post-service year. Anemia was not demonstrated at all until years later. VA treatment notes and the Veteran’s reports show that the Veteran was not diagnosed with anemia until 2009. The February 2018 VA examiner concluded that it was less likely than not that the currently diagnosed its onset in service and did not manifest to a compensable degree within one year of service. Therefore, service connection for anemia, on a presumptive basis as a “chronic disease,” is not warranted in this case. See 38 C.F.R. §§ 3.307, 3.309(a). Notwithstanding the foregoing, the Board will consider the claim on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, the Veteran’s service treatment records do not indicate a diagnosis of anemia. Post-service medical records demonstrate a diagnosis of anemia. However, there is no competent evidence, lay or medical, that the condition is the result of active military service. As noted above, the service treatment records are negative for anemia. The record is negative for competent medical evidence of a link between the Veteran’s current anemia and any incident of active duty service, to include exposure to Agent Orange. Again, the Veteran asserts that his anemia is due to exposure to Agent Orange during military service. As a lay person, he is competent to report on that which he has personal knowledge, i.e. dizziness and fatigue. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds that the question of whether the herbicide exposure caused anemia is a complex medical matter as to an internal process that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (“Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.”). Thus, the Board finds that the Veteran’s own opinion of etiology lacks probative value. In sum, there is no medical evidence demonstrating that the Veteran’s anemia is related to service. The Veteran’s contentions, while considered, have less probative value compared to the opinions of the July 2010 and February 2018 VA examiners. Here, the opinions of the July 2010 and February 2018 VA physicians are afforded significant probative value because they are based on a review of the Veteran’s medical history, the Veteran’s contentions, and are supported by the evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304. The evidence weighs against granting service connection for anemia, to include as due to exposure to Agent Orange. As such, service connection is not warranted. (Continued on the next page)   Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for anemia, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel