Citation Nr: 20007626 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 14-06 594 DATE: January 29, 2020 ORDER Entitlement to service connection for chronic lymphocytic leukemia is granted. FINDING OF FACT The Veteran has specialized education and experience that renders her qualified to provide competent medical opinion. The probative evidence of record is at least in relative equipoise as to whether the Veteran’s chronic lymphocytic leukemia began during active. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic lymphocytic leukemia have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from September 1965 to June 1968, and from September 1983 to May 1985. This case is before the Board of Veterans’ Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at an August 2017 hearing. The matter was remanded to the Agency of Original Jurisdiction (AOJ) for additional development in December 2017, specifically, for the addition of the July 2017 DBQ and medical opinion to the record, and to obtain treatment records from Boston and Bedford VAMC’s. As the forgoing have been received, the Board finds the there has been substantial compliance with the previous remand directives, and appellate review may proceed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for chronic lymphocytic leukemia The Veteran contends that her current diagnosis of chronic lymphocytic leukemia is due to exposure to causative agents during field exercises in Fort Sam Houston from 1965-1968, or alternatively, from benzene heaters during service. She also asserts that during service she experienced bleeding that was symptomatology of chronic lymphocytic leukemia, establishing that her chronic lymphocytic leukemia began during service (8/02/2017 Hearing Transcript, p. 7; 2/19/2019 VA 21-4138 Statement In Support of Claim). While herbicide and benzene exposure have been asserted to be in-service causes of the Veteran’s chronic lymphocytic leukemia, the Board will first focus on whether symptoms attributed to the Veteran’s current diagnosis were present in service, with continuity of symptomatology since service, that is attributable to the chronic disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The medical evidence of record supports that the Veteran has a current diagnosis of chronic lymphocytic leukemia (12/04/2007 Medical Treatment Record - Non-Government Facility, p. 13; 1/10/2018 VA 21-0960B-1 Hairy Cell and other B-Cell Leukemias Disability Benefits Questionnaire). The Board notes that leukemia is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. While not diagnosed with chronic lymphocytic leukemia in service, the Veteran’s service treatment records of October 1967 note complaint of being tired, easily fatigued, and bruising easily (9/22/2014 STR – Medical, p. 34). Records of May 1967 note hematemesis; chest examinations were noted in June 1967 and April 1968. The Veteran’s white blood counts of 12,800;14,250; and 6,600 are noted on various in-service hematology notes (9/22/2014 STR – Medical, pgs. 53-69). During her hearing, the Veteran testified, based on her specialized education and experience, that the forgoing in-service symptoms were symptoms of chronic lymphocytic leukemia. With regard to her qualifications to render a medical opinion, the Veteran testified to her post-Master degree education and qualification as a Registered Nurse, with experience as a Staff Nurse, Supervisor, Manager, Consultant, Professor, and Medical Board reviewer for national companies (8/02/2017 Hearing Transcript, p. 5). Her qualifications are confirmed in part by her DD214, indicating her specialty as a nurse (9/22/2014 Military Personnel Record, p. 22). She explained that during service, the medical technology did not exist to diagnose chronic lymphocytic leukemia (8/02/2017 Hearing Transcript, p. 9). The Veteran also testified that collective symptoms are what ultimately lead to her diagnosis, and that different symptoms occurring for years is typical of chronic lymphocytic leukemia (8/02/2017 Hearing Transcript, p. 13). The Veteran claims that she was exhibiting other symptoms of chronic lymphocytic leukemia in the 1970s, to include osteoarthritis, kidney stones, susceptibility to infection, and heightened sensitivity to side effects for medication (8/02/2017 Hearing Transcript, p. 8). This is supported by her April 1980 report of medical history, where she reported symptoms of swollen or painful joints, sinusitis, pain or pressure in chest, cramps in legs, adverse reaction to serum, drug or medicine, piles or rectal disease, frequent or painful urination, kidney stone or blood in urine, arthritis, rheumatism or bursitis (9/22/2014 STR – Medical, p. 8). The Veteran is competent to report that she experienced these symptoms during service; her notation of them at the time of service enhances the credibility of these assertions. She also credibly explained that as an officer, she only sought medical care for extraordinary health issues. As her in-service chronic lymphocytic leukemia symptoms did not interfere with her work, formal medical attention beyond that noted in her medical record was not sought. She contributed her tiredness to long work hours. During service, incidental maladies that may have related to her chronic lymphocytic leukemia were not noted in record as nursing medical officers often provided medical care to each other informally, failing to document such treatment formally. Also of record, in favor of the Veteran’s claim is a July 2017 private examiner opinion that the Veteran’s claimed condition is at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury event or illness, stating that hematologic conditions are known to occur with exposure to herbicides and benzene (1/10/2018 Medical Opinion). The Board notes, in conflict with the Veteran’s opinion is a January 2014 VA examination opining the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. In the rationale, the examiner discounted the risk factor of benzene exposure, stating that OSHA measurements in hospital facilities were mandated in the 1970s and her service record did not indicate symptoms of dizziness, headaches confusion, indicative of benzene exposure. The examiner cited research and indicated that CLL develops within 10 to 15 years post exposure and the Veteran’s diagnosis was 21 years later. The January 2014 examiner also noted the Veteran’s husband is a chronic long-time smoker and attribute the Veteran’s risk factors of exposure to second hand smoke, her age, and ethnicity (1/10/2014 CAPRI, p. 2). In weighing the evidence, the Board notes the July 2017 private examiner opinion does not provide any rationale with regard to the Veteran’s in-service symptomatology or continuity of symptomatology since service. As such, while competent and credible, it has diminished probative weight. Indeed, even if the examiner’s reasons for finding a negative association to benzene are compelling, the opinion neglected to consider that, whatever the potential cause, records contemporaneous to service reflect symptoms and complaints that can be consistent with the later diagnosis. The Board finds the opinions of both the Veteran and the January 2014 examiner to be the most competent medical evidence of record. The Board, however, assigns the greater probative weight to the Veteran’s testimony discussed above. The Board finds her testimony to be all encompassing, explaining the nature of the symptoms displayed in service, the importance of hindsight in looking at the symptoms, both during service and at the time of her diagnosis. The Veteran also provided adequate explanation as to the limitations of lab technology that prohibited diagnosis during her service, despite her symptomatology at the time. The Veteran’s testimony is of greater probative weight than the January 2014 VA examination, as that opinion focused most extensively on benzene exposure, did not address the in-service symptoms of fatigue, bruising, high white blood cell count, and bleeding as noted by the Veteran. The January 2014 examiner focused solely on the absence of dizziness, headaches confusion, indicative of benzene exposure. Because of these limitations within the rationale, the January 2014 opinion is assigned negligible probative weight. The Board has considered the January 2014 examiner’s assertion of a potential intercurrent cause, that being that the Veteran’s husband is a chronic long-time smoker. The husbands smoking, explained by the Veteran as an outdoor smoker (12/04/2007 Medical Treatment Record - Non-Government Facility, p. 10), provided as a risk factor in conjunction with other risk factors of her age, and ethnicity. However, again, the rationale of the examiner does not account for relevant symptomatology complained of during service, predating any intercurrent causes. (Continued on the next page)   After considering the conflicting evidence of record regarding the attribution of the symptomatology and evidence regarding the Veteran’s diagnosis of chronic lymphocytic leukemia, the Board finds the Veteran’s lay and medical expert testimony to be compelling as to continuity of symptomatology, and at least in equipoise with the other evidence of record weighing against her claim. In light of the forgoing, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current chronic lymphocytic leukemia arose in service. Resolving doubt in favor of the Veteran, the Board finds that symptoms attributed to the Veteran’s current diagnosis were present in service, with continuity of symptomatology since service that is attributable to the chronic disease. As such, the Board finds that service connection for chronic lymphocytic leukemia is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.