Citation Nr: 18101521 Decision Date: 05/07/18 Archive Date: 05/07/18 DOCKET NO. 16-52 193 DATE: May 7, 2018 ORDER New and material evidence has been received to reopen the service connection claim for myelomonocytic leukemia, now claimed as myelofibrosis. Service connection for myelofibrosis is granted. FINDINGS OF FACT 1. An unappealed claim for service connection for myelomonocytic leukemia was denied by the RO in an October 2011 rating decision. The Veteran was notified of the rating decision, but did not appeal. 2. Evidence received since the last final October 2011 rating decision is new and material, and relates to an unestablished fact necessary to substantiate the claim for service connection for myelofibrosis. 3. The Veteran has a current diagnosis of myelofibrosis. 4. The Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange, in service based on his service in the Republic of Vietnam during the Vietnam Era. 5. The medical evidence of record establishes that the Veteran’s myelofibrosis is related to presumed herbicide agent exposure during service. CONCLUSIONS OF LAW 1. The October 2011 rating decision, which denied the claim for service connection for myelomonocytic leukemia is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen service connection for myelomonocytic leukemia, now claimed as myelofibrosis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for myelofibrosis are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(6) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from May 1968 to December 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated January 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2016, the Veteran perfected a timely substantive appeal. A Board video-conference hearing was held in April 2017 before the undersigned Veterans Law Judge (VLJ), and a transcript of the hearing has been associated with the claims file. Additional evidence submitted by the Veteran following the hearing, see Transcript of April 14, 2017 Board Hearing (Hearing Transcript) at pgs. 20, 22, is subject to automatic waiver of RO review pursuant to 38 U.S.C. § 7105(e) and has also been associated with the claims file. The medical records reflect that there have been variations on the Veteran’s diagnosis through the years. Mindful that there may be distinct medical differences between myelomonocytic leukemia and myelofibrosis, to avoid confusion, the Board will refer to the Veteran’s current illness as “myelofibrosis” in its discussion as that appears to accurately represent the most recent diagnosis. See VA treatment record dated January 11, 2016. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for myelomonocytic leukemia, now claimed as myelofibrosis. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time-period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in January 2011, the RO re-opened the Veteran’s prior final claim for service connection for myelomonocytic leukemia as part of a VA-wide review of claims by Vietnam veterans who had diseases potentially related to in-service exposure to herbicide agents, pursuant to the holding in Nehmer v. U.S. Dep’t of Veterans Affairs, 32 F.Supp.2d 1175 (N.D. Cal. 1999). In a rating decision dated October 2011, the RO denied service connection on the basis that myelomonocytic leukemia was not a B-cell type leukemia, and therefore did not fall under the presumptive service connection provisions of 38 C.F.R. § 3.309(e), and denied service connection. The evidence considered at the time included the Veteran’s service personnel records, service treatment records (STRs), Social Security Administration records, and VA and private treatment records reflecting that the Veteran was diagnosed with myelomonocytic leukemia. See e.g. VA treatment records dated July 9, 2001 and July 26, 2005. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the October 2011 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the October 2011 denial of the claim includes letters from private physicians T.A., MD and T.G., MD dated August 2014 and April 2015, respectively, a merckmanuals.com Internet article about myelofibrosis, and a university graduate thesis suggesting a causative link between dioxins and leukemia. See L.S.A. Impact of Gestational Exposure to 2,3,7,8-Tetrachlorodibenzo-p-Dioxin on T-Lymphocyte Development, pgs. 106-130 (University of Wisconsin-Milwaukee Dec. 2014) (see VBMS “Correspondence” (VBMS receipt date 04/20/2017)). This evidence, specifically the August 2014 and April 2015 medical opinions, relates to the unestablished element of a nexus between the Veteran’s current disability and service in the prior denial. Additional evidence received since the October 2011 final denial is therefore new and material. The criteria for reopening the claim for service connection for myelofibrosis are therefore met. 2. Entitlement to service connection for myelofibrosis, previously claimed as myelomonocytic leukemia, to include as due to exposure to herbicide agents. The Veteran asserts that he has myelofibrosis, which he attributes to exposure to herbicide agents during active service in Vietnam. See Notice of Disagreement dated March 2015; Appeal to Board of Veterans’ Appeals (VA Form 9); Hearing Transcript at pgs. 6, 8. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disability; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred in or aggravated by service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted for a disease first 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). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the first element of service connection, a present disability, is established by the Veteran’s diagnosis of myelofibrosis. See e.g. Private treatment record dated May 17, 2012 (acute myeloid leukemia); VA treatment records dated January 11, 2016 (myelofibrosis). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent such as “Agent Orange.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Here, the Veteran’s service personnel records establish that he served in the Republic of Vietnam from May 1969 to December 1970. See DD Form 214, Section 30. Therefore, he is presumed to have been exposed to an herbicide agent during service, which establishes the second service connection element, that of in-service occurrence. The dispositive issue is whether the Veteran’s myelofibrosis is related to his exposure to herbicide agents, such as Agent Orange, during service. To the extent that the Veteran offers his statements relating his current disability to service as evidence of a nexus, such attempt fails. While the Veteran is competent to offer testimony on observable symptoms of his illness, as a lay person he is not competent to provide evidence as to medical questions, particularly complex medical questions, such as determining the etiology of his myelofibrosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Nonetheless, as discussed above, the post-service medical evidence now includes two medical opinions submitted by private physicians that establish a nexus between the Veteran’s leukemia and Agent Orange exposure in Vietnam. A letter dated August 2014 from T.A., MD notes that the doctor provided care for the Veteran beginning in 2005 after he was diagnosed with leukemia. Doctor T.A. stated that he reviewed the Veteran’s military records and considered his exposure in Vietnam to Agent Orange. Citing reports by the Institute of Medicine and the Myeloproliferative Neoplasm Research Foundation, Doctor T.A. stated that Agent Orange is a known causative agent of the type of leukemia with which the Veteran was diagnosed. Considering the Veteran’s diagnosis, military and medical records, and the absence of a family history of bone marrow disease, Doctor T.A. opined that it is more likely than not that the Veteran’s leukemia is a direct result of his exposure to Agent Orange during service. A letter from T.G., MD dated April 2015 notes her opinion that it is more than likely that the Veteran’s leukemia was caused by his exposure to Agent Orange in Vietnam. Doctor T.G. said she supported Doctor T.A.’s August 2014 letter. She also stated that she had reviewed the Veteran’s bone marrow biopsies from 2001 and 2011, which showed an increase in CD34 positive progenitor cells. Doctor T.G. cited published reports she said indicated a relationship between CD34 cells and dioxins, including reports published by the Journal of Blood in 2004 and the American Society of Clinical Pathology and Hematopathology (ASCPH) in 2005. Of note, the Veteran referenced the ASCPH report during his April 2017 hearing and submitted the citation for that report, among others, to the Board following the hearing. See Hearing Transcript at pg. 12. Each medical opinion is competent, credible and probative: each opinion was authored by a physician who is familiar with the Veteran’s symptoms, diagnoses, and treatment of his disease; and each opinion was based on a review of medical evidence of record and contains clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Notably, there are no medical opinions or other competent medical evidence of record that weighs against the opinions of Doctors T.A. and T.G. Accordingly, the Board finds the August 2014 and April 2015 medical opinions are highly probative, competent and persuasive medical evidence in this case. In view of the foregoing, the Board concludes that the preponderance of the evidence supports the Veteran’s claim for service connection for myelofibrosis on a direct basis. The claim therefore is granted. The grant of service connection on a direct basis pursuant to 38 C.F.R. § 3.303 renders moot all other theories of service connection. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel