Citation Nr: 21003988 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-63 317 DATE: January 25, 2021 ORDER Entitlement to service connection for acute myeloid leukemia (AML) is denied. FINDING OF FACT AML did not have its onset during active service or within one year of service discharge and is not otherwise due to active service, to include as due to presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for AML have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to May 1969, including service in the Republic of Vietnam, and he received several awards, including the Combat Infantryman Badge. The Veteran died in November 2016, and the substituted appellant in this matter is his surviving spouse. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a July 2019 videoconference hearing, and a transcript of the hearing has been associated with the claims file. Entitlement to service connection for AML. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a disability, a Veteran 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. For certain chronic disorders, including leukemia, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Service connection for certain specified diseases, including all chronic B-cell leukemias, may also be granted on a presumptive basis due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in 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. Even where service connection cannot be presumed, service connection may still be established on a direct basis. The appellant has consistently asserted that the Veteran’s AML is due to his presumed exposure to herbicide agents during active service in Vietnam. However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for AML. The reasons for this decision follow. As to the first element of a service-connection claim, a current disability, the Board finds that post-service VA and private treatment records document the Veteran’s diagnosis of AML in November 2015. Regarding the in-service element of a direct service connection claim, the Board finds that service treatment records do not document complaints, treatment, or diagnosis of AML or related symptoms. The Veteran’s May 1969 Report of Medical Examination at separation documents a normal clinical evaluation of the lymphatic system, without any notation of a leukemia defect or diagnosis. Additionally, the Veteran specifically denied cancer or any other relevant symptoms within a concurrent Report of Medical History at separation. Moreover, service treatment records do not otherwise document any reports or diagnosis of AML or other symptoms of leukemia. Given the above, the Board finds that the preponderance of the evidence is against a finding that AML had its onset during active service. Nonetheless, the Board has also considered the appellant’s theory of entitlement that the Veteran’s AML is a result of his presumed exposure to herbicide agents during active service. The Veteran’s active service in Vietnam is confirmed by service personnel records, thus, he is entitled to the presumption of exposure to an herbicide agent during such active service, which is also sufficient to meet the in-service element of the appellant’s service-connection claim. Notably, however, AML is not one of the specified diseases for which service connection may be presumed based upon the Veteran’s presumed exposure to herbicides during his service in the Republic of Vietnam. In this regarding, the Board is mindful that in February 2016, VA sought an opinion as to whether the Veteran’s AML fell under the broader category of chronic B-cell leukemia, which would thereby warrant a grant of presumptive service connection based upon his presumed exposure to herbicide agents during active service in Vietnam. However, the VA examiner opined that AML did not qualify as a chronic B-cell leukemia; rather, he stated that AML consisted of a group of relatively well-defined hematopoietic neoplasms involving precursor cells committed to the myeloid line of cellular development (ie, those giving rise to granulocytic, monocytic, erythroid, or megakaryocytic elements). The Board finds the February 2016 VA examiner’s opinion to be highly probative and supported by an adequate rationale. Given the above, presumptive service connection is not warranted as due to presumed herbicide exposure. Similarly, there is no probative evidence that the Veteran’s AML first manifested within one year of service discharge, as the objective post-service treatment records document that AML was first diagnosed in November 2015. As such, presumptive service connection for leukemia as a chronic disease is also not warranted. Nevertheless, the appellant may still establish her claim on a direct basis by probative evidence which establishes that it is more likely than not that the Veteran’s AML is directly due to his presumed exposure to herbicide agents during active service. However, following a review of the record, and as discussed below, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran’s AML and his active service, to include as being due to his presumed herbicide exposure. The Veteran submitted an April 2016 opinion from a VA physician, who concluded that the Veteran’s diagnosis of AML was as likely as not a result of exposure to Agent Orange during his military service. However, the Board finds that this opinion is not probative, as the physician did not provide a rationale for the opinion. A medical opinion without a rationale is not probative. In conjunction with the July 2019 Board hearing, the appellant submitted additional evidence in support of her claim, including a December 2017 opinion from the same VA physician who provided the prior April 2016 opinion that did not include a rationale. Within the December 2017 opinion, the VA physician again concluded that the Veteran’s AML was more likely than not the result of Agent Orange exposure during his military service, and the physician further stated in support of the opinion that the exposure and delayed evolution of AML is consistent with the predicted mutagenetic effects of benzene derivatives like Agent Orange. Additionally, the physician noted that other veterans with AML and Agent Orange exposure have received service connection for their diagnoses. The appellant has also submitted a June 2017 letter from a hematologist, who wrote that Agent Orange contains benzene rings and benzene is a known carcinogen. Moreover, the doctor attached two reference articles pertaining to benzene exposure and AML. Based upon the Veteran’s service in Vietnam and his diagnosis of AML, the hematologist hoped that the Veteran’s case may be reviewed and compensation awarded as seems fit. Finally, the appellant also submitted a September 2017 opinion letter from the Veteran’s VA treating physician who stated that the Veteran was diagnosed with AML and that he served in Vietnam and was exposed to Agent Orange. The physician then noted that the link between AML and previous Agent Orange exposure remains unclear but there are reports that indicate potential association. In the September 2019 remand, the Board noted that the prior February 2016 opinion obtained by VA was limited to the question of whether AML qualified as a B-cell leukemia in order to warrant presumptive service connection, and that the opinion did not address the additional question of whether the Veteran’s AML was directly related to his active service, to include his presumed exposure to herbicides during active service in Vietnam. Additionally, the Board noted that the December 2017 and September 2017 opinions submitted by the appellant offered some rationale in support of a nexus between the Veteran’s AML and his presumed herbicide exposure; however, the Board also took judicial notice of the recent publication of Veterans and Agent Orange: Update 11 (2018), published by the National Academy of Science (NAS), which reiterates that AML remains in the category of inadequate or insufficient evidence regarding a potential link to herbicide exposure. Specifically, the 2018 Update noted that “VA asked previous VAO committees to address CLL, AML, and HCL individually” but that “several studies” “did not provide support for an association of AML with exposure to the [chemicals of interest (COIs)].” Additionally, the committee for Update 2006 did not recognize an association between the COIs and AML. See Veterans and Agent Orange: Update 11, page 330. Additionally, the update recognized that “[i]n adults, the majority of acute leukemias are AML” and that “[r]isk factors associated with AML include high doses of ionizing radiation, occupational exposure to benzene, and exposure to some medications used in cancer chemotherapy (such as melphalan).” See Veterans and Agent Orange: Update 11, page 356. While the Update noted that some Vietnam veterans have expressed concern about whether myelodysplastic syndromes, which can transform to AML, are associated with Agent Orange exposure, no results on those conditions in conjunction with the COIs have been found in VAO literature searches. Id. Finally, the Update summarized that the original “committee responsible for VAO concluded that there was inadequate or insufficient information to determine whether there is an association between exposure to the COIs and all types of leukemias.” “Additional information available to the committees responsible for Update 1996 through Update 2010 did not change that conclusion. The committee responsible for Update 2006 considered AML individually but did not find evidence to suggest that its occurrence is associated with exposure to the COIs, and there is still not sufficient evidence to support such an association, so AML has been retained with other non-CLL leukemias in the category of inadequate or insufficient evidence.” See Veterans and Agent Orange: Update 11, page 358. Given the evidence discussed above, the Board remanded the appellant’s claim in order to obtain an adequate addendum opinion regarding the appellant’s claim. Thereafter, in December 2019, VA obtained an addendum opinion regarding the appellant’s claim. A VA examiner reviewed the claims file, including service treatment records which the examiner stated are silent for any complaints, issues, events, or treatment with regard to the Veteran’s immune system condition, to include SML. The examiner stated that there are no signs and symptoms of anemia, fatigue, infection, or bleeding to increase the suspicion of the development of AML during active service. Additionally, the examiner noted that interim medical records from 1970-2014, spanning a time period of nearly 45 years, are likewise silent for any signs and symptoms suggestive of AML, until the Veteran presented with symptoms of high grade fevers, night sweats, fatigue, myalgia, and arthralgias in 2015, at which time, he was further worked up and showed diagnostic findings of AML. The examiner stated that AML is most commonly seen in adults aged 65 years old, and it is caused by the abnormal proliferation of the blast cells from the one marrow which are unable to reach full maturity to differentiate and function in a physiologic manner. The examiner noted that is not clear as to what causes the DNA mutations that lead to AML, but factors that may increase risk of AML includes increasing age, sex (male), exposure to radiation, certain chemicals (benzene), smoking, and genetic disorders. The examiner noted that the Veteran served in Republic of Vietnam and was presumed to have been exposed to herbicide agents. Concerning the June 2017 letter from a private hematologist discussed above, which stated that Agent Orange contains benzene rings and benzene is a known carcinogen, the examiner stated that further review of medical records showed that benzene metabolism significantly occurs principally in the liver and lung and that risk assessment from exposure to benzene or herbicides follows the demonstration of the probable symptoms suggestive of AML from benzene exposure is increased close to the date of exposure or within 10 years and less likely from a gap of close to 50 years. Additionally, the VA examiner stated that post-military medical records showed that the Veteran worked in the construction industry, which has likely caused his significant benzene exposure (glues and paints) and less likely from active service. In addition, the examiner stated that there is also limited reputable established medical evidences to directly link AML and the chemicals of interest, to include herbicide and herbicide benzene containing agents. The examiner noted that the 2018 Update to Veterans and Agent Orange: (Update 11), the NAS Institute of Medicine reiterated that AML remains in the category of inadequate or insufficient evidence regarding a potential link to herbicide exposure. The examiner concurred that the etiology of AML is without a clear and established definitive cause, and the association of AML and herbicide agents are insufficient to establish a pathophysiological link. Therefore, the VA examiner opined that the Veteran’s AML was less likely than not related to his presumed exposure to herbicide agents during active service. After consideration of the conflicting nexus evidence discussed above, the Board affords the most probative value to the December 2019 VA examiner’s opinion, which is well supported by a rationale and is based upon a thorough review of the claims file, including the conflicting nexus evidence, and it also properly considers the NAS Agent Orange Updates in the context of the specific facts of the Veteran’s case. Conversely, as noted above, the April 2016 opinion from a VA physician is completely unsupported by a rationale. While the subsequent December 2017 opinion by the same VA physician contains a statement in support of the opinion that the exposure and delayed evolution of AML is consistent with the predicted mutagenetic effects of benzene derivatives like Agent Orange, as well as a reference to other veterans with AML and Agent Orange exposure who have received service connection for their diagnoses, the Board finds that the rationale offered by the December 2017 opinion is outweighed by the December 2019 opinion. Notably, the physician’s statement that delayed evolution of AML is consistent with predicted benzene derivatives like AML does not specifically link the Veteran’s AML to his presumed herbicide agent exposure, and it does not reconcile the fact that the NAS Agent Orange Updates continue to fail to identify a link between AML and herbicide exposure. Additionally, the reference to other veterans receiving VA benefits for AML does not weigh in favor of a grant of the appellant’s claim, as Board decisions are not precedential and apply only to the specific facts of the cases decided. Similarly, the June 2017 letter from a hematologist contains a supporting rationale; however, the Board notes that the medical articles submitted in support of the June 2017 opinion do not relate to the specific facts of the Veteran’s case. Additionally, concerning the June 2017 opinion, the December 2019 VA examiner clarified that further review of medical records showed that benzene metabolism occurs principally in the liver and lung, as opposed to the lymphatic system in the case of AML, and the time from exposure to benzenes or to demonstration of the probable symptoms of AML is increased close to the date of exposure, or within 10 years, and that it was less likely when the gap from the time of exposure to display of symptoms was close to 50 years later. As such, the Board affords less probative value to the June 2017 opinion. Finally, the September 2017 opinion letter from the Veteran’s VA treating physician also does not weigh in favor of a grant of the appellant’s claim, as the physician merely noted the “unclear” link between AML and previous Agent Orange exposure and “potential” reports that indicate association. To the extent that the lay statements of record, including the appellant’s July2019 Board hearing testimony, assert that the Veteran’s AML is related to his active service, to include as due exposure to herbicide agents, the Board finds that the appellant is not competent to directly link the Veteran’s AML to active service or presumed herbicide exposure, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the appellant’s own statements of opinion are nonprobative evidence. In conclusion, the Board finds that the preponderance of the evidence weighs against the appellant’s claim of entitlement to service connection for AML, to include as a result of presumed exposure to herbicide agents. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.