Citation Nr: 20056770 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 17-01 397 DATE: August 27, 2020 ORDER Entitlement to service connection for anemia, to include thrombocytopenia, is denied. FINDING OF FACT Anemia, to include thrombocytopenia, is not related to service, to include presumed exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for entitlement to service connection for anemia, to include thrombocytopenia, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from April 19, 1967, to March 28, 1969, including service in The Republic of Vietnam. He has been awarded the Combat Infantryman Badge, the Bronze Star Medal, and the Silver Star, among other commendations. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2018, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Veteran submitted additional medical evidence subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction (AOJ). As the current appeal was perfected by a substantive appeal received on December 20, 2016, the Board will consider this evidence in the first instance. Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2019). 38 U.S.C. § 7107(a)(2) (West 2014). Service Connection – Laws and Regulations Veteran is seeking service connection for anemia on the basis that it is related to presumed exposure to herbicide agents in service. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). A disease covered by 38 U.S.C. § 1116 becoming manifest as specified in that section in a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. 38 U.S.C. § 1116(a). A veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(b); 38 U.S.C. § 1116A (those who served in the 12-nautical-mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). In the case of a veteran who engaged in combat with the enemy in a period of war, satisfactory lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran’s favor. See VAOPGCPREC 12-99. “Satisfactory lay or other evidence” under 38 U.S.C. § 1154(b) means “credible evidence.” Caluza v. Brown, 7 Vet. App. 498, 510 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996) (table). The provisions of 38 U.S.C. § 1154(b) can only provide a factual basis upon which to establish the occurrence of a particular disease or injury in service; they cannot be used to link the claimed disease or injury etiologically to a current disability. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; rather, they relax the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for anemia, to include thrombocytopenia. The Veteran does not contend that he was diagnosed with anemia in service. He has not asserted a relationship between his anemia and a specific injury or disease in service. His sole contention is that he incurred anemia after service, due to his presumed exposure to herbicide agents, such as Agent Orange, during his service in The Republic of Vietnam. The Board has reviewed the Veteran’s assertions. In his claim, the Veteran noted “Anemic Condition (low platelet count)” began 1/1989; place of treatment: west Jefferson medical center, Marrero, LA (Record 03/03/2012). In an August 2012 written statement, the Veteran reported that, in 1989, he attempted to donate platelets to a friend. He was informed that his platelet count was too low to donate and that he should continue to have his platelet count monitored, which he has done since 1989. The Veteran was not aware at that time that he may have been exposed to chemicals such as Agent Orange in Vietnam; (Record 08/06/2012). On the VA Form 9, the Veteran stated that certain records of physicians were not available because they were destroyed. “Anemia caused by Agent Orange” (Record 12/20/2016). Service treatment records reveal no complaints, treatments, or diagnoses pertinent to thrombocytopenia. A report of medical examination performed on May 27, 1969 (service separation) shows that findings for all bodily systems were normal (Record 10/09/2013 at 3). The Veteran did not report any pertinent problems on the report of medical history at that time. The Veteran was separated from active duty on March 28, 1969. He filed the current claim on March 2, 2012. Private treatment records note low platelet counts starting in December 2001, and continuing on at regular intervals until the present. It appears that the only normal platelet count was on January 30, 2013 (Record 12/20/2016 at 13). A March 26, 2012, Clinical Note reveals the Veteran’s account of thrombocytopenia for many years (since the ‘70s) (Record 12/20/2016 at 170). A September 16, 2013, Hematology Oncology Progress Note by Dr. Spell reveals a history of leukopenia and thrombocytopenia secondary to hepatitis B. The examiner noted that the Veteran understands that “Agent Orange exposure may have long-term effects on his immune system.” Dr. Spell also noted that, Agent Orange exposure may increase his risk of myelodysplasia and leukemia in the future (Record 06/20/2014). A December 13, 2018, letter from Dr. Spell states that the Veteran is a long term patient who is frequently monitored for a diagnosis of thrombocytopenia and leukopenia. Dr. Spell cannot rule out that his condition was caused from exposure to Agent Orange (Record 01/27/2019 at 1). An August 2019 VA Hematologic and Lymphatic Conditions Examination reveals diagnoses of neutropenia and thrombocytopenia, with dates of diagnosis in the 1980s. Results of testing revealed a platelet count of 139. There was no impact of the condition on the Veteran’s ability to work. The examiner opined that the diagnoses were less likely than not due to Agent Orange exposure. The rationale was that the Veteran has mild nonspecific, stable neutropenia and thrombocytopenia. There is no consistent evidence in the literature that Agent Orange exposures causes thrombocytopenia or leukopenia. There is no consistent evidence that it causes myelodysplastic syndrome either (the Veteran does not have a diagnosis of myelodysplastic syndrome at present) (Record 08/08/2019). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for anemia have not been met. The Board initially finds that its remand instructions were substantially complied with. The instructions were to obtain updated VA treatment records and schedule a VA examination and opinion addressing a relationship between the Veteran’s anemia and herbicide agents and addressing the statement of Dr. Spell. The AOJ obtained the updated records and obtained an examination and opinion in August 2019. See Stegall v. West, 11 Vet. App. 268 (1998). See also See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). The first element to establish service connection—current disability—has been confirmed. However, with regard to the second element, while exposure to herbicide agents is presumed, the diseases listed under 38 C.F.R. § 3.309(e), do not include anemia or thrombocytopenia. Therefore, there is no presumption of service connection on the basis of exposure to herbicide agents. The Board also notes that anemia is not included among the presumptive chronic diseases(38 C.F.R. § 3.309(a)). Therefore, there is no presumption of service connection on that basis. The Veteran has not put forth an assertion of secondary service connection (38 C.F.R. § 3.310). The evidence does not suggest that his anemia is proximately due to, a result of, or aggravated by his service-connected mental disability, tinnitus, or hearing loss. Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). There is no asserted injury or disease other than herbicide agent exposure. The Veteran has made no other contention regarding in-service injury or disease. Moreover, he has not asserted that anemia is related to combat with the enemy. In any event, VA has recognized the event of herbicide agent exposure, during combat and otherwise. The service treatment records do not reveal any injury or disease which would require a medical opinion on the basis of direct service connection. The Board finds that a preponderance of the evidence is against the third element required for direct service connection—a relationship between an event in service and the current anemia, to include thrombocytopenia. The August 2019 VA opinion provides probative and persuasive evidence against incurrence of the current anemia due to exposure to herbicide agents in service. The Board finds that the examiner’s rationale is consistent with the evidence, to include VA’s guidance from the National Academies of Sciences, Engineering, and Medicine that anemia and thrombocytopenia are not listed among the diseases for which the evidence supports a relationship to herbicide agents used in Vietnam. See Veterans and Agent Orange, Update 11 (2018). There is no medical opinion that purports to relate the current anemia to service. The statement of Dr. Call is not a conclusively phrased opinion. The statement that “Agent Orange exposure may have long-term effects on his immune system” is inconclusive. It includes the equally possible corollary that Agent Orange exposure may (not) have long-term effects on his immune system. The statement places no probability on either outcome. The statement that Dr. Call cannot rule out that his condition was caused from exposure to Agent Orange, is equally problematic. It essentially states that a relationship between the two is not impossible. This is not the standard to establish service connection. The likelihood must be at least 50 percent. Dr. Call establishes only that it is not 0 percent. The CAVC has repeatedly and consistently rejected medical opinions raising only a possibility of medical nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A medical opinion that is not conclusively stated, but asserts only the possibility of a relationship between an event in service and a current disability, cannot be interpreted as an opinion in favor of service connection. The Board has considered the Veteran’s lay statements regarding etiology. However, relating current anemia, which the Veteran acknowledges occurred approximately 20 years after service, to herbicide agent exposure in service, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of a layperson—the Veteran in this case—because the record does not show that he has the medical training or credentials to make such a determination. Such an opinion is not capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiologic relationship between the claimed anemia, to include thrombocytopenia, and service. There can be no doubt from review of the record that the Veteran rendered honorable and valorous service deserving of utmost respect, and that he is sincere in his belief that his anemia is related to his service. While the Board is sympathetic to this contention, the weight of the evidence does not substantiate the claim. In sum, the Board finds that the claimed anemia, to include thrombocytopenia is not related to service. In light of this finding, the Board concludes that service connection for the claimed anemia is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.