Citation Nr: 21002828 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 15-36 167 DATE: January 15, 2021 ORDER Entitlement to service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits is denied. FINDING OF FACT The competent evidence of record does not show that the Veteran’s current acute myelogenic leukemia was noted during his active service, or that it is related to service, to include toxic herbicide exposure. CONCLUSION OF LAW The criteria for service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits have not been met. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968, including service in the Republic of Vietnam. This appeal was remanded by the Board in July 2020. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the appellant was sent a supplemental statement of the case in November 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Entitlement to service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits The appellant is seeking entitlement to service connection for acute myelogenic leukemia (AML), as due to herbicide agent exposure. Specifically, the Veteran claimed in his Notice of Disagreement that his AML stems from Agent Orange exposure during service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, chloracne and respiratory cancers, and as potentially relevant here, B-cell leukemias. 38 C.F.R. § 3.309(e). In this case, after reviewing all evidence currently of record, the Board determines that service connection for acute myelogenic leukemia (AML) is not warranted because the evidence does not show that the Veteran’s AML is directly or presumptively related to his service, that it arose within a year after separation, or that it is related to his toxic herbicide exposure. First, the Veteran served in the Republic of Vietnam during the years between 1967 to 1971; this, and his credible testimony of exposure in service, means he is presumed to have been exposed to Agent Orange in service. However, AML is not a disorder that VA considers presumed related to toxic herbicide agent exposure under §3.309. Accordingly, the Veteran’s leukemia cannot be attributed to his acknowledged herbicide agent exposure on a presumptive basis. Next, although though her primary assertions have been addressed above, the appellant is not precluded from establishing service connection for his COPD with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. Specifically, the Veteran’s service treatment records show no treatment for or symptoms of leukemia or any blood disorder in service or at his separation exam in July 1968, or within the presumptive one-year period after separation. The Veteran was diagnosed with AML in May 2014, forty-six years after his separation. Appreciable symptoms of leukemia before then are not reflected by the evidence. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology. While the Veteran’s leukemia is, according to his most recent examination, in remission, it was present during the pendency of the Veteran’s claim. As such, it is a current disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007). However, the Veteran’s initial diagnosis of AML is decades after he left service. Moreover, he has never truly asserted that such symptoms have existed since service. Therefore, continuous symptoms have not been established based on the evidence of record or the Veteran’s statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between his current disorder and his active duty service. However, the medical evidence showing a possible nexus is outweighed by the evidence against showing one. A VA opinion dated September 2014 discusses the likelihood that the Veteran’s service, particularly his presumed exposure to Agent Orange, caused his AML. The examiner explained that while studies do show a possible link between the benzenes present in Agent Orange and the development of AML, the evidence is not convincing enough to warrant service connection as if it were a presumptive Agent Orange condition. Moreover, the examiner reasoned that the Veteran’s tobacco use, which involved exposure to benzene rings, and was much more recent than his conceded Agent Orange exposure, is a more likely factor. Put another way, in the face of another more recent known risk factor (tobacco use), the examiner was unable to state that AML is linked to Agent Orange exposure to the degree required to award service connection benefits. Next, in order to obtain more information to clarify the 2014 VA examiner’s prior opinion rationale, the Board forwarded the claims file to another VA examiner in a November 2020. There, M.M. MD, cites research noting that direct Agent Orange exposure is linked to specific types of cancers. The 2018 publication of the National Academies of Sciences-Engineering-Medicine concluded that there is inadequate or insufficient evidence to determine an association between exposure to Agent Orange and leukemias in general (except, of course, the subtypes of Chronic B-cell and hairy cell leukemias already listed in 3.309). As explained by the examiner, numerous studies are done to determine this link, and the studies have rejected a link between AML specifically, and Agent Orange exposure. This, in the Board’s view, outweighs the “limited data” and the “established link” mentioned by the September 2014 and June 2019 opinions. The Board finds the evidence weighs against finding that it is at least as likely as not that there is a direct link between the Veteran’s Agent Orange exposure in Vietnam and his onset of AML. The Board recognizes the large number of opinions both the Veteran and the appellant have submitted in support of this appeal. First is a statement from September 11, 2014, by Dr. B.P., who the Board recognizes as a specialist in leukemia-type disorders. There, Dr. B.P. stated that “Agent Orange is a risk factor for development of AML and, if exposed, it is at least as likely as not that his AML is a complication of his prior exposure.” Later that same month, on September 17, 2014, Dr. B.P. submitted an addendum, stating that there is “limited data to support a connection between Agent Orange and AML. However, AML is known to be a complication of toxin exposure, and Agent Orange is a well known toxin that has been associated with multiple other cancers.” Next, on April 4, 2016, Dr. D.H., another specialist in areas such as hematology and oncology, submitted a comprehensive statement, which fully discussed the Veteran’s treatment history. Here, Dr. D.H. stated that the Veteran’s exposure to Agent Orange was a “plausible cause for” the Veteran’s AML. Dr. D.H. added that many aromatic compounds, which would include Agent Orange, are “well established in causal relationship to leukemia and other blood related cancers.” On September 25, 2017, Dr. D.H. provided an update, noting that the Veteran had been experiencing residual effects from his treatment. Although she provided no opinions, per se, on this occasion, she clearly conveyed her frustration that the Veteran’s claim was still denied. Dr. D.H. also submitted an addendum opinion on June 13, 2019, after the Veteran’s death, pointing out that the cause of the Veteran’s death, a lung infection, was directly attributable to his AML treatment. In reality, from the Board’s perspective, the arguments made by the private medical specialists and the VA examiners are effectively the same. Namely, it is fairly well understood that, in general terms, chemical compounds from the same family as Agent Orange (typically benzene-based compounds) have a led to higher risk for a number of cancers, including AML. Indeed, nothing in the medical evidence, and specifically from any of the medical professionals who provided opinions dispute this principle. Indeed, the Board agrees with the general sense of these opinions that the Veteran’s AML could well be due to his toxic herbicide exposure. However, this is not sufficient to grant service connection, because it is, in the end, speculation. See Obert v. Brown, 5 Vet. App. 30; Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, while both the private medical specialists infer (if not specifically point out) that they have treated other patients in similar circumstances, every patient’s situation is different. For example, as the VA examiner in 2014 insinuated, how much exposure to toxic herbicides the Veteran received is unknown, and that is a relevant factor. Moreover, the situation is complicated by the Veteran’s smoking history, which presented both a likely more extend and more recent carcinogenic exposure. In fact, the Board finds is probative that the VA examiner in 2014 did conclude that this was the more likely cause. Thus, while the private opinions are certainly evidence in the Veteran’s favor, the Board finds that the VA opinion is not only adequate, but more thorough and is more convincing in its supporting logic. In arriving at this conclusion, the Board recognizes the statements of the Veteran and the appellant regarding the Veteran’s treatment and its effect prior to his death. The Veteran’s representative also suggested that the evidence is in equipoise. Unfortunately, neither statement is sufficient to warrant service connection. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran and the appellant, and her representative, are not competent to testify regarding the etiology of AML or any other blood disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. In addition, a well-substantiated medical opinion is required to link the Veteran’s AML to his time in service, especially when it relates to a blood disorder that can be caused by many factors. As such, the lay statements of belief that the Veteran’s AML is related to his time in service, especially his exposure to Agent Orange, are found to lack competency. Therefore, based on the evidence of record, the Veteran’s claim must be denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia