Citation Nr: 18155408 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-23 347 DATE: December 4, 2018 REMANDED Entitlement to service connection for acute myelocytic leukemia is remanded. Entitlement to service connection for myelofibrosis is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 1968 to June 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision by a Department of Veterans’ Affairs (VA) Regional Office (RO). The RO was notified that the Veteran died in April 2015. In February 2016, the Board issued an opinion that it had no jurisdiction to rule on the appeal due to the death of the appellant. In September 2017, the Decision Review Officer affirmed that the Veteran’s spouse is an eligible substitute claimant, and the appeal returned to the Board. The appellant’s sole theory of entitlement to service connection is under the presumption granted due to exposure to herbicides, to include Agent Orange. The RO has conceded exposure to Agent Orange based on the Veteran’s confirmed service in Vietnam. However, the RO denied service connection in this instance because the Veteran’s disease is not one of the listed conditions associated with herbicide exposure under 38 C.F.R. § 3.309(e). Private treatment records show the Veteran was initially diagnosed with myelofibrosis in November 2009. His disease had progressed to AML by August 2010. He received treatment throughout 2010 and 2011, including stem-cell transplants. In a March 2011 Disability Benefits Questionnaire, a physician marked “Yes” to whether the Veteran had been diagnosed with hairy-cell or any other B-cell leukemia. However, the remainder of the Questionnaire refers to AML, which an April 2014 VA medical opinion noted is not a B-cell cancer. In an April 2014 VA Exam, the examiner found that the Veteran’s AML and myelofibrosis were less likely than not (less than 50% probability) related to his exposure to Agent Orange. The rationale for the opinion was that the “service connection based on Agent Orange is only available for leukemias associated with B-lymphocytes” and the Veteran’s diseases were not B-cell based. Notably, the examiner did not have access to the Veteran’s claims file and stated “it will be necessary to obtain hospital work up on this patient.” The rationale did not address any other potential causation. The Veteran, in his February 2013 Notice of Disagreement and in other documents, asserted that his AML and myelofibrosis are directly related to his exposure to benzene, which is alleged to be a component of Agent Orange. In support of this assertion, the Veteran has submitted several internet articles. These articles suggest a link between exposure to benzene and risk of myelofibrosis. The Veteran also submitted a 2008 Board opinion that dealt with Agent Orange exposure and AML. The opinion quoted a medical examiner’s response to a question on causation as follows: “The chemical structure of Agent Orange is composed of Benzene Rings, and it is as likely as not that exposure to Agent Orange also involves exposure to the effects of its components, that is Benzene constituents. Benzene is a known causative agent of acute myeloid leukemia, and is extensively documented in medical and environmental literature.” In independent research, the Board found several other opinions that are consistent with the above section. The single medical opinion regarding causation of the Veteran’s disease is not based on any review of the record and only addresses the possibility of service connection under the listed conditions in 38 C.F.R. § 3.309(e) without addressing other potential theories of entitlement. Therefore, the exam was insufficient to decide the case, and a new medical opinion is needed. There is a “low threshold” when assessing the need for a medical examination. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain a medical opinion as to whether it is at least as likely as not (at least 50 percent probability) that the Veteran’s AML and/or myelofibrosis was the result of his presumed exposure to Agent Orange during his service in the Republic of Vietnam, to include any exposure to the effects of its components, to include benzene constituents, if applicable. The AOJ should ensure that the entire claims file is available for review by the consulting clinician. In making this determination, the clinician should presume the Veteran’s exposure to Agent Orange during service. The opinion provider should also consider and discuss all pertinent evidence of record as necessary - to particularly include (1) the 2008 Board opinion submitted by the Veteran, which cites to medical evidence suggesting a causal link between benzene and AML, and (2) medical articles and literature submitted by the Veteran suggesting a link between benzene and myelofibrosis, and any other relevant medical literature. In rendering the requested opinion, the opinion provider should consider and discuss as necessary the evidence in the record indicating that medical literature supports that benzene is a component of Agent Orange. Further, as Board decisions are not precedential, rather than simply referring to a favorable decision issued by the Board in another veteran’s claim, the VA physician must explain the rationale for the opinion provided, citing to supporting clinical data and/or medical literature, as appropriate. The consulting physician must explain the rationale for all opinions. If the consulting physician is unable to provide the requested opinion without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the provider does not have the needed knowledge or training). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel