Citation Nr: 20009853 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-04 818 DATE: February 5, 2020 ORDER Entitlement to service connection for polycythemia and erythrocytosis due to herbicide exposure is denied. FINDING OF FACT The Veteran’s polycythemia and erythrocytosis did not begin during and was not otherwise caused by his military service, including herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for polycythemia and erythrocytosis, as due to herbicide exposure, are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to August 1973, with service in Vietnam. As an initial matter, the Board observes the Veteran died in April 2017 during the pendency of this appeal. The Appellant is his surviving next of kin. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran’s surviving next of kin moved to substitute as a claimant in the Veteran’s claims that had been pending when he died. The AOJ granted the motion in October 2017 and recognized the Appellant as a substitute claimant. The Appellant has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. As discussed more fully below, there are competing medical opinions on these issues, and the Board must weigh their evidentiary value. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The fact there are conflicting medical opinions does not automatically lead to a conclusion that there is equipoise. Mere disagreement among experts does not indicate that the evidence is in equipoise. Rather, the Board must consider several factors in determining the adequacy and probative value of a medical opinion such as the expert’s knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert’s familiarity with pertinent medical history; whether there is any inconsistency in the expert’s statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; and whether the opinion is the result of principles and methods reliably applied to facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); D’Aries v. Peake, 22 Vet. App. 97, 108 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Daves v. Nicholson, 21 Vet. App. 46, 51-52 (2007); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Previously, the RO conceded presumed herbicide exposure and the Board will not disrupt this favorable determination. However, the list of diseases associated with exposure to certain herbicide agents does not include polycythemia and erythrocytosis. As such, presumptive service connection is not warranted. See 38 C.F.R. § 3.309(e). In this regard, the Board notes the National Academy of Sciences (NAS) in Update 11 (2018) has continued to find inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and ‘other myeloid diseases’ including myeloproliferative neoplasms and myelodysplastic syndromes, which includes polycythemia and erythrocytosis. Notwithstanding the presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Dioxin and Radiation Exposure Compensation Standards Act does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the question in front of the Board is whether the Veteran’s polycythemia and erythrocytosis may be service-connected on a direct basis. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, it is not in dispute that the Veteran was diagnosed with polycythemia and erythrocytosis in 2015 and had residual treatment. As noted above, it is also not in dispute that the Veteran was exposed to herbicides. A nexus showing that exposure as likely as not caused his polycythemia and erythrocytosis is therefore needed. In this case, there are several conflicting nexus opinions. First, in August 2015, VA Dr. R.A. noted that the Veteran had spent 13 months in Vietnam with extensive AO exposure, and opined “hematologic abnormalities are direct complication of the agent orange exposure, which would include uncontrolled red cell production or the [polycythemia] vera. It is most likely the direct cause of the Veteran’s excess red cell production.” Then, in January 2016, Dr. R.A. again opined that “there is really no question that the [Veteran’s] polycythemia vera, which is an abnormality of excess blood cell production is a direct consequence of his agent orange exposure.” In December 2016 and again in March 2017, Dr. R.A. opined that the Veteran’s increased red blood cell production is a direct result of Agent Orange exposure. He discussed the Veteran’s cancer and opined that the cancer and abnormal red cell production are “direct complication and consequence of Agent Orange exposure.” He stated in 2016 that the defect “is on the same gene associated with increased lymphocyte cell production which has been proven without a doubt to be Agent Orange related.” However, while the Board has considered these opinions, the opinions did not contain sound medical and scientific evidence showing a positive association exists between herbicide exposure and the occurrence of the claimed condition. There is contrary medical evidence which is more persuasive as discussed below. Further, in August 2015, a private physician noted the Veteran’s heavy smoking history, and charted that the Veteran had eliminated nicotine, but continued to vape. The physician opined that the etiology of the Veteran’s polycythemia appeared to be secondary to his history of tobacco abuse. The opinion was based on the Veteran’s smoking history that had been variably documented from as few as one to two packs of cigarettes per day for 30 years to as much as three packs of cigarettes per day for 50 years. Private records from May 2015 testing also revealed that JAK 2 mutation was negative, which likely meant the Veteran’s condition was secondary polycythemia, since erythropoietin (EPO) levels were low, and it was noted that this is not entirely consistent with Polycythemia Vera. Therefore, due to the conflicting medical opinions, the Board referred the case to a hematologist specialist to consider the Veteran’s full medical history and to provide an advisory medical opinion to determine whether the Veteran’s erythrocytosis and polycythemia were etiologically related to his active duty service, to include exposure to herbicide agents. Dr. K.C. provided an extensive opinion in May 2019 with a clarifying addendum opinion in August 2019, where he opined the Veteran had Secondary Erythrocytosis which etiologically was not related to his active duty service, and not Primary Erythrocytosis or Polycythemia Vera, which the Veteran had claimed he had. The rationale, which included citations to medical literature, was as follows: • it is important to know whether the Veteran had Polycythemia Vera which is due to single point mutation and therefore likely to be related to herbicide exposure, OR secondary erythrocytosis which can be caused by: smoking, sleep apnea, stress, renal cysts, renal artery stenosis, liver cirrhosis, chronic obstructive pulmonary disease, cancer of the kidney, liver or adrenal glands among others. • The Veteran had 60 to 150 pack years of smoking, and secondary erythrocytosis is a compensatory mechanism in smokers due to exposure to excess carbon monoxide and reflected by elevated blood carboxyhemoglobin. • The level of carboxyhemoglobin is higher in smokers, but studies have shown that within 12 hours after cessation of smoking, carboxyhemoglobin level can change towards normal value, and the effect of short-term smoking halt on carboxyhemoglobin levels and P50 values. Hence normal carboxyhemoglobin does not support the diagnosis of Polycythemia Vera, it can also be normal in smokers. • The Veteran had renal cysts on CT of his abdomen, and this is a rare but one of the many well-known causes of secondary erythrocytosis. • The tests for Jak2 V617F and Jak2 exon 12 mutations were negative which further supports the diagnosis that patient has secondary erythrocytosis since this mutation is present in greater than 99% of Polycythemia Vera. • Jak2 V617F is the most frequently found mutation (96%), in those negative for Jak2 V617F mutation, significant number of patients have Jak2 exon 12 mutation (3.3%). There are other Jak2 mutations exons 13 to 15 which are usually not tested. Overall less than 99% of Polycythemia Vera shows this point mutation. Absence of Jak2 mutation supports the diagnosis of secondary polycythemia or erythrocytosis. • Polycythemia Vera is a stem cell disease and there is usually increase in all 3-cell lines, i.e. there is a general increase in white corpuscle, red corpuscles and platelets. Here, the Veteran’s white corpuscles and platelets were within normal limits, supporting the diagnosis of secondary erythrocytosis. In addition, Dr. K.C. considered Dr. R.A.’s opinions that the Veteran’s condition was due to his exposure to herbicides in Vietnam; however, he opined that Dr. R.A. did not order serum EPO levels on the Veteran to support his diagnosis. This testing is important because a normal or low level would have confirmed Polycythemia Vera. In sum, Dr. K.C. opined the Veteran had secondary erythrocytosis rather than Polycythemia Vera, and secondary erythrocytosis is less likely than not due to exposure to herbicides. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez, 22 Vet. App. 295. In this case, Dr. K.C. was aware of the Veteran’s medical history, provided a fully articulated opinion, and furnished a reasoned analysis with citation to medical literature, as well as to significant diagnostic test results for the Veteran, to support his conclusions. The Board therefore attaches significant probative value to this opinion. Further, the Veteran’s service treatment records are negative for any blood disorders; and the Veteran had not stated that he first manifested symptoms of any blood disorders while in service. The Veteran was not diagnosed with a blood disorder until approximately 42 years after service in 2015; and none of the medical evidence of record relates the post-service diagnosis of polycythemia and erythrocytosis to military service other than as due to his exposure to herbicides. In summary, while there is a possibility that exposure to herbicides may create an increased risk of myeloproliferative neoplasms and myelodysplastic syndromes, which include polycythemia and erythrocytosis, the probability was less likely than not (that is, less than 50 percent) that such exposures caused the Veteran’s condition. The Board considered Veteran’s attorney’s statement in the January 2017 substantive appeal, citing to other Board cases that were favorable to polycythemia and erythrocytosis being service-connected. However, the specialist’s opinion in this case specifically considered the Veteran’s medical situation. Board decisions are not precedential, as they are based on the specific facts of each case. The VA expert opinion clearly states it was less likely in this case that such a relationship existed. Dr. K.C. also provided alternative etiologies for the condition and opined the Veteran’s condition was not due to his exposure to herbicides, whereas Dr. R.A. did not consider the totality of the Veteran’s medical history and diagnostic test results, nor did he discuss the Veteran’s substantial history of tobacco use. For the reasons stated above, service connection for polycythemia and erythrocytosis is not warranted on any basis. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, the preponderance of the   evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.