Citation Nr: 20008187 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-26 861 DATE: January 30, 2020 ORDER The appeal with respect to entitlement to service connection for bilateral hearing loss is dismissed. Service connection for T-cell large granular lymphocytic (T-LGL) leukemia (claimed as multiple myeloma) is granted. FINDINGS OF FACT 1. At a November 2019 hearing, prior to the promulgation of a Board decision on the matter, the Veteran asked that his appeal with respect to entitlement to service connection for bilateral hearing loss be withdrawn. 2. The Veteran is presumed to have been exposed to herbicide agents as a result of his service in Vietnam. 3. The Veteran has a diagnosis of T-LGL leukemia; the evidence as to whether the condition can be attributed to service, to include as due to exposure to herbicide agents, is at least in equipoise. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the issue of entitlement to service connection for bilateral hearing loss by the Veteran and/or his representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for T-LGL leukemia have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1966 to September 1968, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from December 2017 rating decisions issued by a Department of Veterans’ Affairs (VA) Regional Office. In November 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In October 2019, VA received a request from the Veteran’s representative for a copy of his records from his VA claims folder pursuant to the Privacy Act. That request has yet to be fulfilled. As the benefit sought is being granted in full, there is no prejudice to the Veteran in referring the request to the agency of original jurisdiction (AOJ) for appropriate action. 1. The appeal with respect to entitlement to service connection for bilateral hearing loss An appeal may be withdrawn as to any or all issues involved in an appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative on the record at a hearing. Id. At his November 2019 hearing, prior to the promulgation of a Board decision on the matter, the Veteran asked that his appeal with respect to entitlement to service connection for bilateral hearing loss be withdrawn. The Board finds that the criteria for a withdrawal have been satisfied. Accordingly, the Board does not have jurisdiction to review the appeal of that issue and it must be dismissed. 2. Service connection for T-LGL leukemia The Veteran seeks to establish service connection for T-LGL leukemia on a presumptive basis, as due to exposure to herbicide agents. He contends that T-LGL leukemia is a type of Non-Hodgkin’s lymphoma, which qualifies under VA regulations as a condition which is presumptively due to exposure to herbicide agents. He further contends that even if the disorder cannot be service connected on a presumptive basis, the evidence demonstrates that the disorder is directly due to his exposure to herbicide agents during his service in Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include Non-Hodgkin’s lymphoma. 38 C.F.R. § 3.309(e). The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. There is no material dispute that the Veteran has been diagnosed with T-LGL leukemia. As military personnel records also confirm service in Vietnam during the requisite period, there is also no dispute that the Veteran was exposed to herbicide agents during service. The key issue before the Board is whether T-LGL leukemia is a type of Non-Hodgkin’s lymphoma (and therefore subject to presumptive service connection) or, if not, whether the evidence establishes that the Veteran’s T-LGL leukemia was caused by his exposure to herbicide agents. While T-LGL leukemia is not expressly included in the list of diseases that are presumptively linked to exposure to herbicide agents, the Veteran has submitted medical treatises from the World Health Organization, the American Cancer Society, and the Leukemia and Lymphoma Society, all of which indicate that T-LGL leukemia is a form of non-Hodgkin’s lymphoma. The Veteran’s representative has also cited to three prior Board decisions which found that T-LGL leukemia is a form of Non-Hodgkin’s lymphoma and granted service connection on a presumptive basis. In addition to evidence regarding the general classification of T-LGL leukemia as a type of Non-Hodgkin’s lymphoma, the Veteran submitted a private medical opinion from Dr. K. A., D.O., in November 2019, which addressed the Veteran’s claim specifically. Dr. A. stated that based on her experience, training, review of the Veteran’s medical records, and review of the literature and VA file concerning the Veteran, it was her medical opinion that it was at least as likely as not that the Veteran’s T-LGL leukemia is a form of Non-Hodgkin’s lymphoma. She also provided extensive rationale for her opinion by citing to medical treatises and studies (including those noted above) which have found a correlation between T-LGL leukemia and many other blood cancers that are subject to presumptive service connection. She concluded that it was her professional opinion that based on her review, and after twenty years of practicing medicine, that the Veteran’s T-LGL leukemia is causally related to his military service in Vietnam. The Board finds Dr. A.s’ private opinion to be highly probative on the question of whether the Veteran’s T-LGL leukemia is a type of Non-Hodgkin’s lymphoma, and whether it was caused by his exposure to herbicide agents in service. The opinion was based on review of the Veteran’s record, including his reports, the medical record, and medical literature regarding the classification of T-LGL leukemia as a type of Non-Hodgkin’s lymphoma, with a thorough rationale was provided for the opinion given. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board acknowledges that a December 2017 VA examiner found that the Veteran’s T-LGL leukemia was not a multiple myeloma, a Hodgkin’s or Non-Hodgkin’s lymphoma, or a chronic B-cell leukemia, and that is was therefore not subject to presumptive service connection. However, the Board is permitted to favor one medical opinion over another provided it gives an adequate statement of its reasons and bases for doing so. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). Here, the Board finds that the evidence demonstrates to at least a level of equipoise that T-LGL leukemia is a type of non-Hodgkin’s lymphoma, and that it therefore qualifies for service connection on a presumptive basis. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.