Citation Nr: 1806772 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-24 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for multiple myeloma (claimed as autologous stem cell support for multiple myeloma). ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 4, 1987 to February 27, 1988 and from June 27, 2000 to November 20, 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the claim has since been transferred to the RO in New York City, New York. In June 2017, the Veteran's claim was remanded by the Board in order to provide him with the videoconference hearing he requested in an April 2017 statement. A hearing was scheduled for January 2018; however, the Veteran did not appear. In a letter to VA received that same month, the Veteran indicated that he no longer wished to have a hearing. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704 (d). Finally, as concerns representation, the Veteran was originally represented in this matter by the Texas Veterans Commission, as reflected in a September 2006 VA Form 21-22 (Appointment of Veteran's Service Organization as Claimant's Representative). In June 2017, the Veteran executed a VA Form 21-22a (Appointment of Individual as Claimant's Representative) naming a private attorney as his representative. Then, in a December 2017 letter, the Veteran's private attorney withdrew his representation. In a January 2018 letter, the Veteran informed VA that he had revoked the attorney's representation. A revocation of power of attorney or representative designation by the Veteran is considered effective upon receipt. As the record on appeal does not contain any currently executed form appointing a valid representative in this matter, the Board is proceeding with its consideration of this appeal with the understanding that the Veteran is now appearing pro se. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his multiple myeloma is etiologically related to his military service. CONCLUSION OF LAW The criteria for establishing service connection for multiple myeloma have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In a July 2007 letter, a Dr. D.S. explained that he was the physician treating the Veteran for multiple myeloma. Dr. D.S. opined that it was possible that the Veteran had the cancer while on active duty in the Army, although there was no way to prove or disprove that fact. In November 2007, the veteran's file was provided to a VA physician for purposes of determining the etiology of his multiple myeloma. In the resulting examination report, the physician determined that it was not possible to determine when the Veteran's disease process began. She noted specific studies and indicated that it might be possible to interpret such literature in a manner to find that the Veteran's cancer had its onset in service. However, given the unknowns in medicine and the variability of disease progression in many cancers, to try to divine the mathematical likelihood that the Veteran's cancer began in the military could not be determined without speculation. In March 2010, Dr. D.S. authored a second letter. He determined that it was more likely than not that the Veteran developed multiple myeloma due to his in-service exposure to chemicals and certain toxins, to include jet fuel. Dr. D.S. explained that kerosene-based fuels are complex mixtures of potential toxins such as benzene and n-hexane and is reasonably anticipated to be a human carcinogen. Therefore, the Veteran's exposure to the chemicals over time caused the development of his cancer. In a November 2010 statement, the Veteran described in great detail his exposure to various fuels while serving in the Army. He indicated that, as a cook, he worked around burners without proper ventilation and was often exposed to exhaust from military tanks. He described using the exhaust from tanks as a method of keeping warm during field training. As part of his MOS, he worked in the motor pool performing maintenance checks on food service equipment and vehicles, and was exposed to exhaust on a daily basis. At no point did he wear protection against inhaling such fumes. Based on the evidence of record, the Board finds that service connection is warranted, as the most probative evidence indicates that the Veteran's cancer is due to his military service. Initially, the Board notes that Dr. D.S.'s July 2007 letter is afforded no probative weight on the question of nexus, as it merely concludes that an in-service onset is "possible." Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus). The November 2007 VA opinion is likewise speculative, as the physician posits that she cannot confirm an in-service onset without resorting to speculation. The Board cannot rely on an examiner's conclusion that an opinion would be speculative unless there is an explanation for such conclusion. See 38 C.F.R. § 3.102 (2017); Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Here, she determined that it would be impossible to speculate on exactly when the Veteran's cancer had its onset; however, she did explain that it was not impossible that there was an in-service incurrence. Therefore, her opinion is afforded some probative weight on the question of nexus. Dr. D.S.'s March 2010 letter is afforded great probative weight on the question. He explained how the Veteran's in-service fuel exposure was the cause of his cancer, based on the fact that fuels are carcinogenic and he had exposure to same. The Board finds that this opinion had a clear conclusion and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). To that end, the Board has no reason to doubt the Veteran's November 2010 description of his in-service exposure to fuel and exhaust fumes. It is likely, based on his MOS of food service specialist, that he was exposed to open, burning flames and vehicle exhaust. A veteran is competent to report on events which occurred in service, because testimony regarding first-hand knowledge of a factual matter is competent. Washington v. Nicholson, 19 Vet. App. 363 (2005). Thus, the Board concedes the Veteran's in-service exposure to such. Combined with Dr. D.S.'s March 2010 letter, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for multiple myeloma is warranted. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. ORDER Service connection for multiple myeloma is granted. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs