Citation Nr: 21002348 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-31 433 DATE: January 13, 2021 ORDER Entitlement to service connection for multiple myeloma is denied. Entitlement to service connection for chronic lymphocytic leukemia (CLL) is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for chronic renal disease is denied. FINDINGS OF FACT 1. Multiple myeloma was not manifest in service, within one year of separation from service, and is not otherwise caused by the Veteran’s active service. 2. CLL was not manifest in service, within one year of separation from service, and is not otherwise caused by the Veteran’s active service. 3. Hypertension was not manifest in service, within one year of separation from service, is not otherwise caused by the Veteran’s active service, and was not caused or aggravated by a service-connected disability. 4. Chronic renal disease was not manifest in service, is not otherwise caused by the Veteran’s active service, and was not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for multiple myeloma are not met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for service connection for CLL are not met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 4. The criteria for service connection for chronic renal disease are not met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army as a General Medical Officer from July 1967 to February 1970. The above claims were remanded by the Board in October 2018 for additional development. In addition, the issues of entitlement to service connection for right and left knee disabilities were remanded. A July 2020 rating decision granted entitlement to service connection for left and right knee osteoarthritis status post total knee replacement and assigned separate ratings and effective dates. The Board finds the foregoing to constitute complete grants of the benefits sought for those issues and, as such, they no longer are in appellate status. Service Connection 1. Entitlement to service connection for multiple myeloma 2. Entitlement to service connection for chronic lymphocytic leukemia 3. Entitlement to service connection for hypertension 4. Entitlement to service connection for chronic renal disease 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. 38 U.S.C. §§ 1110. Certain diseases, to include cardiovascular-renal disease (including hypertension) and malignant tumors, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no evidence or contention that any of the claimed disabilities manifested within one year of discharge from active service and, as such, further consideration of the foregoing provisions is not necessary. Alternatively, 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.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, all chronic B-cell leukemias (including CLL) and multiple myeloma. 38 C.F.R. § 3.309(e). There is no evidence or contention that the Veteran was exposed to the designated herbicides in Vietnam, as he had no service in that country during the applicable time period or otherwise. As to the Veteran’s leukemia and myeloma claims, he primarily contends that he developed the cancers due to exposure to dioxins during his active service in Alaska from defoliant and herbicide agents. At certain points during the appeal he also has contended that the cancers were due to in-service radiation exposure, although at present he has disavowed such a theory of entitlement. The Veteran also asserts that the hypertension and chronic renal disease were caused or aggravated by the diagnosed cancers. The Veteran’s service personnel and treatment records do not include dosimetry records and records show that he was not screened in the Personnel Reliability Program for duties associated with nuclear weapons. Moreover, his duties as a medical officer are not consistent with work or guarding nuclear weapons. Similarly, his service treatment records do not include any complaints, treatment, or diagnoses relevant to the claims on appeal. The Veteran does not contend in-service onset of any of the claimed disabilities or onset within one year of separation from service. Private treatment records document diagnoses of CLL and hypertension in the early 2000s, chronic renal disease in approximately 2010, and multiple myeloma by 2014. A June 2015 letter from a private physician indicated that the Veteran was “suffering from 3 condition which are associated with exposure to dioxin. The first is chronic lymphocytic leukemia, a chronic B-cell leukemia. The second is diabetes mellitus type 2 and the third is multiple myeloma.” The Veteran “also has biopsy-proven kidney disease which is felt by his physicians at MD Anderson to be associated with his multiple myeloma which is a disease on the list of Veterans’ diseases associated with Agent Orange on the VA.gov website. In addition, there were minor changes in the kidney biopsy compatible with changes related to his diabetes also a condition associated with Agent Orange.” In a July 2015 submission, the Veteran argued that he was exposed to dioxins because his unit was in the field often during the warmer months, the Army had brush and weed killer that was used in areas where troops could be exposed, They camped in areas with few trees and low brush (possibly treated areas), the topsoil always was disturbed with digging, tracked vehicles disturbed the topsoil, there was a constant or near constant wind in some areas, and the water the troops drank “could well have been tainted.” He also indicated that he may have been intentionally exposed to dioxin, as “it would have been very easy for someone to taint my coffee or food, or expose me in some other way.” The rationale for this possibility was that some service members hated Alaska; some hated the isolation; some service members just hated the Army; some were opposed to the Vietnam War; and there were numerous acts of vandalism at the post and in the field. As to possible radiation exposure, the Veteran believed that his commanding officer worked in the Research and Development section of the Army and “we were working on a special project to develop small nuclear weapons that could be used on the battlefield, and delivered by field units.” In addition, a small nuclear reactor at Fort Greely was secretly used to produce material for battlefield nuclear weapons. He also indicated, “Radiation exposure was possible during the time I was with the artillery unit. They were experimenting with small battlefield ordinance that could be delivered by 155 mm Howitzers… The Army was testing 155mm rounds with radioactive material. I was in the field several times when they were firing live rounds. I certainly don’t think that we actually fired the nuclear rounds during an exercise, but that doesn’t mean that the radioactive material was not present.” The Veteran also stated, “During the times I was TDY at Ft. Greely, I was possibly exposed to radiation from the reactor.” A February 2016 letter from the Army Dosimetry Center indicated that there were no records for the Veteran. A May 2016 internal VA correspondence indicated that the Department of Defense (DoD) had not identified any location in Alaska, including the Haines-Fairbanks pipeline, where Agent Orange was used, tested, or stored. In addition, the study cited by the Veteran specifically stated that no dioxin was found in any soil sample. The Veteran testified before a local VA representative in July 2016 where he reiterated his contentions that his cancers were due primarily to herbicide exposure. The Veteran discussed possible dioxin exposure, including along the oil pipeline, but conceded that testing results conducted years later did not show any level of dioxin contamination. The Veteran believed this was because “a lot of experts feel the dioxin levels go away after about twelve years.” The Veteran also has cited to a 1973 herbicide training conference for the Army that included multiple participants from various Alaska facilities. He believes this demonstrates that there had been prior misuse of herbicides at the Alaska facilities, including Forts Greely and Wainwright, that the training conference was meant to correct. In support of his claim, the Veteran submitted a May 2000 Investigative Report by the Alaska Community Action on Toxics for Delta Junction, Alaska that discussed the nuclear reactor at Fort Greely. The report discussed the use of a nuclear reactor at Fort Greely for 14 years, from 1962 to 1972. The Veteran also submitted an Environmental Radiation Monitoring Plan for the nuclear plant at Fort Greely. The Veteran also submitted an internet article from cancer.org discussing the association between Agent Orange and cancer, an article from center4research.org discussing the association between Agent Orange exposure and multiple myeloma, as well as other online articles discussing Agent Orange exposure and its association with cancer. The Veteran has provided multiple articles discussing the association between dioxin exposure and cancer risk. An August 2016 letter from a private environmental scientist indicated, “The question you have raised asks if it were possible that you were exposed to any of the herbicides containing toxins such as dioxin while serving at Fort Wainwright Alaska. The short answer is yes. You were in all likelihood exposed to the offending herbicide.” The Veteran had chronic or ongoing sub-lethal doses due to seasonal applications of herbicides. The scientist discussed how areas within the base were sprayed on an annual basis that included areas covered in gravel and non-paved parking areas. “It is safe to assume that the chemical was in places where it wasn’t meant to be. Sometimes by accident other times by improper but intentional disposal. In other cases, leftover defoliant was sometimes stored in five gallon cans in the supply rooms of individual units.” The scientist noted that the Haines-Fairbanks Pipeline was in the area and ran through areas of the base and the area around the pipeline “has to be the most dioxin contaminated land in Alaska if not the country. It was sprayed constantly for years to keep the b[r]ush away from the actual pipeline.” The scientist concluded, “It is abundantly clear that you were exposed to dioxin bearing herbicides in the field and in garrison while stationed at Fort Wainwright, Alaska. You may not have experienced one memorable contact episode but you without a doubt, experienced numerous nearly imperceptible exposures which are significant health hazards.” A November 2016 article in “Scientific Reports” entitled “Association between dioxin and cancer incidence and mortality: a meta-analysis” discussed how dioxin exposure was significantly associated with all cancer mortality. An April 2018 VA correspondence discussed how commercial herbicides used in routine base maintenance activities such as range management, brush clearing, and weed killing were not governed under the regulations for Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). In addition, the Department of Defense (DoD) had not identified any location on Fort Wainwright, Alaska where Agent Orange was used, tested, stored, or transported. A January 2019 letter from a private physician documented that the Veteran had “myeloma which is well associated with his renal dysfunction and chronic kidney disease stage III with tissue evidence of light chain toxicity in his kidneys. With his myeloma related chronic kidney disease, he developed hypertension that requires him to be on blood pressure medicine that will prevent further complications such as a stroke, heart attack or further kidney injury.” In a March 2019 statement, the Veteran stated that hypertension had been a problem since 2000 when he was placed on medication. About 1 year later he was diagnosed with chronic lymphocytic leukemia. The Veteran’s treating internist could not determine the cause of the hypertension, but his blood pressure remained higher than average for several years. For a while, the doctors believed the high blood pressure was due to taking Ibuprofen for knee pain, but after stopping the Ibuprofen the blood pressure remained elevated. The blood pressure was even higher around the time that the Veteran was diagnosed with multiple myeloma in 2014 and had continued to remain elevated to the present. The Veteran indicated, “The hypertension is caused by the multiple myeloma of the kidney” and that the connection was explained in the January 2019 private physician’s letter. In addition, the Veteran asserted that the chronic renal disease was a consequence of the multiple myeloma, as the cancer had caused extensive kidney damage with the resulting hypertension. A March 2014 renal biopsy had shown arterionephrosclerosis that was consistent with chronic hypertension and Kappa light chain related proximal tubulopathy that was found in multiple myeloma. As to the claimed ionizing radiation, the Veteran asserted that he had never “contended that I was personally exposed to the leaks and contamination from a small nuclear reactor at Fort Greely, Alaska, used to produce material for battlefield nuclear weapons… I do have the two blood cancers, but it is rare for an individual to have these two cancers together, but I do not contend that they were caused by ionizing radiation.” (Emphasis in original.) In addition, he indicated, “I have no knowledge of any actual use of radioactive 105 mm or 155 mm shells. As noted above, I suspect that the nuclear training rounds being tested were manufactured from depleted uranium…” Instead, in the March 2019 statement the Veteran argued that his cancers were the result of in-service dioxin exposure. “I have demonstrated that herbicides were present and being used in Alaska during my deployment. Further, that I was present at those areas during field training exercises. In addition, I have provided extensive documentation regarding the use of herbicides in Alaska. Herbicide and dioxin exposures can be very subtle, and virtually go undetected. Absorption through skin, conjunctiva, or the GI tract can be asymptomatic for years or even decades depending upon the dose. Multiple repeat exposures can be just as deadly, as being drenched all at once. There was more than an ample amount of the herbicides containing dioxin present and being used routinely by the U.S. government in Alaska.” The Veteran indicated that the herbicides containing dioxin were used extensively in areas such as along the oil pipelines. “Those were treated heavily with herbicides to avoid any brush growth. We frequented those areas to eat lunch because of the nice grassy plain. There were no warning signs.” The Veteran indicated that both CLL and multiple myeloma had been linked to dioxin exposure. An August 2020 Radiation Review was completed by the Chief Consultant, Post Deployment Health Service. The Review discussed the Veteran’s contentions of in-service radiation exposure nuclear training rounds using depleted uranium, as well as from work at a nuclear reactor at Fort Greely during the 1960s. The Review discussed the study cited by the Veteran that found leaks from the reactor in use at Fort Greely during the 1960s. The Veteran indicated that he was sent to Fort Greely twice for one-week TDY assignments. He also stated that he was at Fort Greely for one week on a Brigade Winter exercise and possibly at other times, but it was not always clear to him where they were camped out. The Veteran was diagnosed with chronic lymphocytic leukemia in 2002 and multiple myeloma in 2014. The Veteran was a Caucasian male, nonsmoker, and retired pediatric physician. There was a positive family history for his sister with breast cancer, mother with colon cancer, and brother with melanoma. The medical professional indicated review of the investigative report by the Alaska Community Action on Toxics, entitled “The Nuclear Reactor at Fort Greely.” The reviewing medical professional concluded, “It is our assessment that a general medical officer in an operational Army field unit would not have radiation exposure that required routine monitoring. He was not involved in the operation and maintenance of the reactor facility. Radiation dose is the prime factor to consider when determining causation of radiation induced disease. Being in the vicinity of a radiation source does not necessarily mean a significant exposure occurred. Where presumption does not exist, the dose must be determined, the issue of disease causation can be addressed. We will assign a radiation dose (the claim states the Veteran was exposed to radiation) based on the nature and location of the Veteran’s service as described in the claim file. When an occupationally exposed worker is not expected to receive a radiation dose exceeding 1/10 of the annual limit of 5 rem per year (0.5 rem), monitoring is not required. We will assign a dose of 2.0 rem (total effective dose equivalent) to the Veteran, which is calculated as 0.5 rem per year x 4 calendar years of service (1967 to 1970). This assigned dose gives benefit of doubt to the Veteran versus the Army’s lack of dose monitoring records. We have also reviewed employment history, the history of exposure to other known carcinogens, any radiation exposure prior to and after service, smoking and other tobacco use history, and any additional information relevant to causes of the Veteran’s claimed diseases.” The reviewing professional stated that radiation exposure below 10 rem did not result in any higher statistical likelihood of cancer risk. The medical professional concluded, “Since the Veteran’s estimated lifetime total radiation dose (2 rem) did not exceed 100 mSv (10 rem) above natural background, it is our opinion that, it is unlikely that chronic lymphocytic leukemia and/or multiple myeloma were caused by exposure to ionizing radiation during military service.” An August 2020 Advisory Opinion from the Executive Director, Compensation Service, is of record. Based on the above August 2020 Radiation Review, the Executive Director concluded “that there is no reasonable possibility that the Veteran’s chronic lymphocytic leukemia (CLL) and/or multiple myeloma can be attributed to ionizing radiation exposure during military service.” The Board notes that the Veteran also has submitted documents regarding possible exposure to VX nerve gas, but has not explained the circumstances, its significance or possible relationship to any of his claimed conditions. As such, no further consideration of this theory will be entertained. Thus, the Veteran had no in-service evidence of any of the claimed disabilities and the evidence of record does not include lay or medical evidence of a continuity of symptomatology since service. As noted above, the Veteran initially raised the theory that his CLL and multiple myeloma might be related to in-service radiation exposure from the nuclear reactor at Fort Greely or from depleted uranium from 105 and/or 155mm Howitzer rounds. In his most recent correspondences since the prior October 2018 Board remand, however, the Veteran specifically has denied making such claims and specifically has conceded that there is no evidence of in-service radiation exposure and that his claimed disabilities are not the result of in-service radiation exposure. The Board notes that the procedures delineated in 38 C.F.R. § 3.311 were followed and the evidence does not support a finding that either the CLL or multiple myeloma was the result of in-service radiation exposure. As discussed above, an August 2020 Radiation Review returned a negative opinion and there is no other competent lay or medical evidence to support such a finding. As such, the Board turns to the primary question of whether the Veteran had dioxin exposure during his active service in Alaska that resulted in his CLL and multiple myeloma. The Board concludes he did not. To the extent that dioxins in commercial herbicide might have been used at Forts Wainwright or Greely or along the Haines-Fairbanks Pipeline, it has not been demonstrated that the use was during the Veteran’s service in the area, that there was residual dioxin at the time of his service, or (if there was residual dioxin contamination) that the Veteran was exposed. In reaching that conclusion the primary evidence in support of the Veteran’s in-service dioxin exposure is the August 2016 environmental scientist’s letter. The letter states that the Veteran likely was exposed to herbicides during his service in Alaska and discussed the locations and use of herbicides inside the Alaska bases. It is unclear, however, whether the defoliant or commercial herbicides alleged to be used during the time of the Veteran’s service contained dioxins. The letter makes a general statement that the Veteran likely was exposed to herbicides “containing toxins such as dioxin” but does not provide any supporting information that the specific commercial herbicides used during the Veteran’s service at Fort Wainwright, Fort Greely, or along the pipeline contained dioxin or anything to substantiate that the Veteran otherwise was exposed to dioxin during his active service. The August 2016 letter does not explain why commercial herbicides using dioxin were necessarily used, rather than herbicides not containing dioxin. The Board finds particularly significant, and as conceded by the Veteran during his July 2016 hearing, that subsequent testing of the area along the pipeline was negative for residual dioxin contamination. The Veteran has pointed to testing in 1993 done on an area of the pipeline showing high dioxin levels, but this was not an area where the Veteran is ever purported to have visited. Information provided by the Army to the Canadian government may indicate that one of the multiple herbicides used along the pipeline contained dioxin, but does not demonstrate where that particular herbicide was used or, indeed, whether it was used during a time period when the Veteran was serving in Alaska or whether it previously was used in an area with persistent dioxin soil contamination at a time when visited by the Veteran. To the extent that there was demonstrated dioxin contamination at Fort Wainwright or Fort Greely, it is unclear when such contamination occurred and, to the extent that it can be so established, there is nothing to demonstrate that the Veteran was exposed to dioxin as a result of any contamination on either base. The Veteran spent a minimal amount of time at Fort Greely over his multiple years of service. At Fort Wainwright, the sole specific finding of dioxin appears to have been in an area around a storage facility for drums that had been present for many years. Although, the Veteran indicates that the majority of the drums were buried before 1974 the Veteran does not contend that he had any contact with this area and the Board finds insufficient evidence to establish that the foregoing demonstrates the use of herbicides containing dioxin in any area to which the Veteran was exposed or otherwise to demonstrate exposure by the Veteran. The Board considered the Veteran’s duties as a medical officer. Personnel evaluations show that he accompanied his artillery unit in the field during his tour in 1967-68, although it is likely that he performed a large part of his tour of duty inside permanent or field medical facilities. He also performed a tour as a hospital pediatrician. Simply being in the neighborhood of areas that may have been defoliated with commercial herbicide falls short of actual contact with vapor during spraying or residue in soil through respiration, ingestion, or on the skin. The contention that contact could have been by wind driven dirt is speculative and without consideration of the concentration of any chemical in dirt and the nature of physical contact. He has not reported any activities that would make this contact likely and are consistent with the duties of a medical officer. As such, the Board finds no credible evidence of in-service commercial dioxin exposure. Furthermore, the Veteran has not contended and the claims file does not contain any evidence that a competent medical professional has otherwise linked his current disabilities to his active service. The Board recognizes that the Veteran is a physician, however, he repeatedly has stated that he believes that his CLL and multiple myeloma were the result of in-service dioxin exposure. As discussed, the Board finds the preponderance of the evidence against in-service dioxin exposure. As the Veteran has not otherwise linked his CLL and multiple myeloma to service (other than possible in-service radiation exposure, which he since has acknowledged did not occur), the Board cannot grant service connection based on his assertions. As to the contentions that his hypertension and chronic renal disease were caused or aggravated by the Veteran’s multiple myeloma, service connection is not established for multiple myeloma herein. As such, service connection may not be established for any of the claimed disabilities as secondary to service-connected multiple myeloma as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In summary, the Veteran’s service treatment records show no symptoms or issues related to any of the claimed disabilities. There is no evidence of problems related to any of the claimed disabilities for many years after separation from service. No medical professional has ever attributed the Veteran’s diagnosed disabilities to his active service or to exposure to herbicides in service, nor is the Veteran competent to make such a link. The Board finds the August 2016 environmental scientist’s letter insufficient for establishing in-service dioxin exposure, for the reasons discussed above. Based on the foregoing, service connection on a direct basis is not warranted. Moreover, exposure to herbicides is not presumed and service connection on a presumptive basis is not warranted for any of the claimed disabilities. As service connection for multiple myeloma is not warranted, service connection for hypertension and chronic renal disease on a secondary basis is barred as a matter of law. (continued next page) As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.