Citation Nr: 1815455	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  14-38 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for acute myelocytic leukemia (AML), claimed as due to in-service chemical exposure, to include carbon tetrachloride, benzene, and trichloroethylene, among others.  


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Scott W. Dale, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from April 1962 to September 1965, with subsequent service of an unverified nature in the Air Force Reserves until April 1968.  

These matters come to the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The Veteran expressed timely disagreement with this determination, and the present appeal ensued.

In January 2018, the Veteran presented testimony in support of his appeal at a Board hearing conducted by the undersigned Veterans Law Judge via videoconferencing equipment.  A transcript of the January 2018 hearing is associated with the file.  

Issues no longer on appeal

In the July 2011 rating decision, the RO also denied the claims to establish service connection for a left knee disability, hypertension, posttraumatic stress disorder (PTSD), fatigue, and a total evaluation based on individual unemployability due to a service-connected disability (TDIU).  The Veteran included these issues in his timely notice of disagreement, starting the appellate process.  

In an August 2014 Decision Review Officer (DRO) decision, the RO granted the Veteran's claim to establish service connection for PTSD; a 30 percent initial evaluation was assigned, effective from October 26, 2010.  This is considered to be a full grant of the benefit sought with regard to this issue, and the Veteran did not express disagreement in a timely manner with respect to the downstream issues of the assigned initial evaluation or effective date.  As such, that issue is no longer in appellate status.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Archbold v. Brown, 9 Vet. App. 124 (1996).

After being provided a Statement of the Case (SOC) addressing the continued denials of the issues seeking to establish service connection for a left knee disability, hypertension, fatigue, and TDIU, the Veteran perfected an appeal to the Board regarding the issue stated on the title page, and specifically excluded the above issues in this filing.  As such, they are no longer in appellate jurisdiction.  Archbold v. Brown, 9 Vet. App. 124 (1996).

Referred issues

At the January 2018 videoconference hearing, the Veteran and his representative asserted that the Veteran has been diagnosed with lupus and anemia, which are caused or aggravated by his AML.  As such, issues to establish service connection for these disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The most probative competent evidence demonstrates that it is at least as likely as not that the Veteran's acute myelocytic leukemia is the result of the Veteran's service, to include in-service chemical exposure, to include carbon tetrachloride, benzene, and trichloroethylene.  


CONCLUSION OF LAW

The criteria for service connection for acute myelocytic leukemia have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the Veteran's claim to establish service connection for AML is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied, as any error would be non-prejudicial.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

Service Connection 

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.  

Analysis

Throughout the pendency of the appeal, the Veteran has asserted that his diagnosis of AML was caused by in-service exposure to toxic chemicals in an unventilated room as part of his duties as a crypto and teletype repairman.  

Concerning element (1), evidence of a current disability, the record is replete with evidence reflecting a 1988 diagnosis of AML with a bone marrow transplant in 1990 and subsequent periods of disease recurrence and remission.  Thus, element (1) is demonstrated.  

With respect to element (2), evidence of an in-service disease or injury, the Board notes that the Veteran's service treatment records are devoid of a diagnosis of AML or any complaints of or treatment for symptoms indicative of such during the Veteran's service.  However, as noted above, the Veteran has consistently contended that his AML is the result of in-service exposure to toxic chemicals in an unventilated room as part of his duties as a crypto and teletype repairman.  See the Veteran's April 2012 Notice of Disagreement, a November 2012 statement, and transcript of the January 2018 Board hearing at pages 3, 5, and 9.  Although this was not verified or addressed by the RO, the Board finds that the Veteran's reports of these in-service exposures are congruent with the assignments and duties of his Military Occupational Specialty (MOS) as reflected in his personnel file.  Accordingly, exposure to toxic chemicals, to include carbon tetrachloride, benzene, and trichloroethylene, is conceded, and, to that extent, element (2) is demonstrated.  

Concerning element (3), evidence of a nexus between the diagnosed disease and the in-service chemical exposures, the only nexus opinion of record is favorable to the Veteran's appeal.  

Despite the above evidence, the RO did not attempt to obtain an opinion to determine whether the Veteran's AML is proximately due to or the result of this in-service chemical exposure, the Veteran submitted a private nexus statement from a private clinician who had treated the Veteran for AML since 1988.  After a review of the complete record and extensive interactions with, and examinations of, the Veteran, the private clinician opined that "exposure to carbon tetrachloride, benzene, and trichloroethylene, within the timeframe of military service, can with greater than 50 percent certainty be a precipitating factor for acute leukemia."  While the Board notes that the clinician's statement may be interpreted to show a general link, not specific to the Veteran's case, between these chemical exposures and the development of AML, a careful reading of the whole statement shows that the Veteran's specific assertions concerning his in-service working conditions were outlined as he explained and as conceded by the Board.  Further, the private clinician alluded to medical literature bolstering his opinion and observed that the Veteran's reported post-service employment did not include other risk factors for the development of AML.  See an August 2014 statement from Dr. S.J.T.  

In the present case, the Dr. S.J.T. was fully aware of the Veteran's complete service and medical history, and the opinion is congruent with the medical and lay evidence of record.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997).  Moreover, the clinician's statements concerning the Veteran's in-service working conditions and post-service employment clearly shows that the Veteran's specific situation was being contemplated by his opinion.

In light of above, the Board finds that the August 2014 private nexus opinion is adequate for the purpose of adjudicating the Veteran's appeal, and there is no medical opinion evidence to the contrary.  As such, the Board finds that the nexus element has been demonstrated, and that the evidence reflects that the Veteran's AML is due to his in-service chemical exposure, to include carbon tetrachloride, benzene, and trichloroethylene.  Therefore, service connection is warranted.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2017).




(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to service connection for acute myelocytic leukemia, due to in-service chemical exposure, to include carbon tetrachloride, benzene, and trichloroethylene, is granted.  




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs