Citation Nr: 19153386 Decision Date: 07/10/19 Archive Date: 07/10/19 DOCKET NO. 18-33 075 DATE: July 10, 2019 ORDER Service connection for hypertension is granted. Service connection for bladder cancer is granted. Service connection for chronic myeloid leukemia is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his hypertension was due to in-service exposure to herbicides while patrolling along the perimeter of the Royal Thai Air Force Base in U-Tapao, Thailand. 2. Resolving reasonable doubt in the Veteran’s favor, his bladder cancer was due to in-service exposure to herbicides while patrolling along the perimeter of the Royal Thai Air Force Base in U-Tapao, Thailand. 3. Resolving reasonable doubt in the Veteran’s favor, his chronic myeloid leukemia was due to in-service exposure to herbicides while patrolling along the perimeter of the Royal Thai Air Force Base in U-Tapao, Thailand. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for bladder cancer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for entitlement to service connection for chronic myeloid leukemia have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2016 and October 2017 rating decisions by the Department of Veterans Affairs (VA). Service Connection The Veteran contends his hypertension, bladder cancer, and chronic myeloid leukemia (CML) is due to herbicide exposure while serving as a security policeman (dog handler) along the perimeter of the Royal Thai Air Force Base (RTAFB) in U-Tapao, Thailand. See October 2018 brief. At the outset, the Board notes that exposure to Agent Orange has been conceded by the RO as shown by the grant of service connection for coronary artery disease associated with herbicide exposure while serving in Thailand. See November 2018 rating decision. VA laws and regulations provide that if a veteran was exposed to an herbicide agent during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). If the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, the veteran may establish service connection on a direct basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2018); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for hypertension is granted. The Veteran has been diagnosed with hypertension. See September 2018 private examination report; August 2016 VA examination report. As noted above, exposure to Agent Orange is conceded; as such, the remaining question is whether the diagnosed hypertension is related to said exposure. In this regard, the Board notes that while hypertension is not recognized as a presumptive condition due to herbicide exposure, the National Academy of Sciences (NAS) has recently indicated that there is sufficient evidence of an association between hypertension and herbicide exposure. The NAS moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018) (available at http://nationalacademies.org/hmd/ reports/2018/veterans-and-agent-orange-update-2018.aspx); see also 38 C.F.R. § 3.309 (2018). Moreover, a September 2018 private examiner provided a positive nexus opinion relying on various Veterans and Agent Orange Updates for a rationale. The opinion is based on a review of the record and accurate factual premise; it also provides a rationale and cites to medical research. As such, the Board finds it to be adequate and affords significant probative weight to this opinion. The Board acknowledges the negative nexus opinion provided by the August 2016 VA examiner. However, the examiner failed to opine on any association between herbicide exposure and hypertension and, as such, the opinion is irrelevant to the issue at hand. Therefore, affording the Veteran the benefit of doubt, hypertension is presumptively related to in-service herbicide exposure. As such, service connection for hypertension is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for bladder cancer is granted. The Veteran has been diagnosed with non-invasive low grade papillary urothelial carcinoma (bladder cancer). See September 2018 private examination report; May 2016 private treatment record. As noted above, exposure to herbicide agents has been conceded. As bladder cancer is not recognized as a presumptive condition due to herbicide exposure, the remaining question is whether his bladder cancer is otherwise related to service. In this regard, the September 2018 private examiner opined that the Veteran’s bladder cancer is at least as likely as not caused by exposure to herbicides. She reasoned in pertinent part that “in the Veterans and Agent Orange Update 2014, the IOM noted one study in which there was a statistically significant relative risk of developing bladder cancer of 2.04.” “Most of the studies reported by the IOM were conducted too early for bladder cancer to have developed in exposed individuals. This same report also notes that cacodylic acid (the arsenical component of Agent Blue) is noted to cause bladder cancers in rats. Additional studies reviewed by IOM demonstrated that in human bladder cancer tissue activation of the Aryl-H receptor by TCDD enhanced bladder cancer cell invasion. This is precisely how TCDD causes cancer. In animals, the affinity of TCDD for the Ah receptor is correlated with carcinogenic potential. Body burdens of TCDD among the more highly exposed workers in the industrial cohorts were similar in magnitude to body burdens that produced cancer in rodent studies. Steenland notes: ‘Our analyses suggest that high TCDD exposure results in an excess of all cancers combined, without any marked specificity. However, excess cancer was limited to the highest exposed workers, with exposures that were likely to have been 100-1000 times higher than those experienced by the general population and similar to the TCDD levels used in animal studies.’ Based upon these updated studies the IOM changed the classification of bladder cancer and concluded that there is limited or suggestive evidence of association between exposure to herbicides in Vietnam (and elsewhere) and the development of bladder cancer.” The Board notes that there are no contrary opinions of record. Therefore, affording the Veteran the benefit of doubt, service connection for bladder cancer is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for CML is granted. The Veteran has been diagnosed with CML. See September 2018 private examination report; October 2016 VA opinion; August 2016 VA examination report; April 2016 private treatment record. As noted above, exposure to herbicide agents is conceded. As CML is not recognized as a presumptive condition due to herbicide exposure, the remaining question is whether his bladder cancer is otherwise related to service. In this regard, the September 2018 private examiner opined that the Veteran’s CML is at least as likely as not caused by exposure to herbicides. She reasoned in pertinent part “CML initially develops from a myelodysplastic syndrome. It is slowly advancing and indolent. Many people have either the precursor myelodysplastic syndrome or sub-clinical CML for years unless a leukocytosis is investigated, or the patient develops symptoms of a more serious blast crisis. A blast crisis is a more acute form of CML which cannot be distinguished from acute myelogenous leukemia (AML). Even using the Philadelphia Chromosome as a marker does not differentiate the two types of leukemias at this stage since the Philadelphia chromosome is present in 20 to 25% of cases of AML. Because it is so slowly progressing, CML is not diagnosed until late in life, usually the seventh or eighth decade. It is commonly known as a disease of ‘old men.’ Dioxins and TCDD are cancer promoters, therefore they ‘catalyze’ the development of cancer in multiple sites in the body. There is scientific consensus for a common mode of action of TCDD and other chlorinated dibenzodioxins, dibenzofurans, and planar polychlorinated biphenyls (PCBs). In humans and rodents, this mode of action involves events that stem from the initial binding of the chemicals of interest to the aryloraromatic hydrocarbon (Ah) receptor. The Ah receptor is a ubiquitous protein in the cells of vertebrates (including rodents and humans), which acts as a signal transducer and activator for gene transcription. In a study of the Aryl H receptor in mice, Butler et al. noted: ‘The aryl hydrocarbon receptor (AhR) is a sensor of environmental toxins such as TCDD and its activation by these ligands can lead to immune system impairment, endocrine disruption and cancer.’ Their study showed that Aryl H defective mice developed a condition diagnosed as CML. In another study in mice, Singh et al showed that TCDD activated Aryl H receptors lead to an increase in multipotential hematopoietic stem cells which develop into both lymphocytic and myeloid cell lines. These studies support the opinion that Agent Orange causes immune dysfunction and can cause CML.” The opinion is based on a review of the record and accurate factual premise; it also provides a rationale and cites to medical research. As such, the Board finds it to be adequate and affords significant probative weight to this opinion. The Board acknowledges the negative nexus opinion provided by the August 2016 and October 2016 VA examiners. The August 2016 examiner opined that the Veteran’s CML was less likely as not related to Agent Orange exposure. In so opining, the examiner reasoned that in myeloid or myelogenous leukemias, the cancerous change takes place in a type of marrow cell that normally goes on to form red blood cells, some other types of white cells, and platelets. In lymphoblastic or lymphocytic leukemias, the cancerous change takes place in a type of marrow cell that normally goes on to form lymphocytes, which are infection-fighting immune system cells. Most lymphocytic leukemias involve a specific subtype of lymphocyte, the B cell. Therefore, the examiner concluded, it is less likely as not the Veteran's Chronic myeloid leukemia is related to agent orange exposure as current literature does not support a causal link between Chronic myeloid leukemia and Agent Orange exposure during service. The Board finds the opinion to be adequate in that it provides a full rationale and is based on a review of the record. In regard to the October 2016 opinion, the examiner only opined as to whether CML is a B-cell leukemia but did not provide an opinion as to the relationship between Agent Orange exposure and CML. As such, the opinion is irrelevant to the issue at hand. Upon consideration of the above, the Board finds that the evidence is at least in equipoise as to whether CML is related to the conceded exposure to Agent Orange and the Board will resolve reasonable doubt in the Veteran’s favor. As such, service connection is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.