Citation Nr: 21004513 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 20-00 715 DATE: January 27, 2021 ORDER Entitlement to service connection for hairy cell leukemia is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran’s hairy cell leukemia is a result of active duty. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for hairy cell leukemia have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1958 until March 1961. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran withdrew his hearing request in September 2020. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain chronic diseases, such as leukemia, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to service connection for hairy cell leukemia The Veteran contends that his hairy cell leukemia is related to his active duty service, to include exposure to non-ionizing radiation. Specifically, the Veteran states that he was unintentionally exposed to radiation for 15 to 20 minutes when he climbed a radar antenna to find a break or hole in the radar screen. The Veteran’s medical records, to include an August 2019 VA examination, indicate that the Veteran was diagnosed with hairy cell leukemia in July 1994. Therefore, the first Shedden element is satisfied. The Veteran states that he was exposed to non-ionizing radiation while on TDY at a radar/listening station in the Sea of Japan during his overseas tour in Korea. The Veteran’s military personnel records verify that he served in Korea from October 1958 until November 1959 and his DD 214 indicate that his MOS was electrician. Throughout the course of the appeal, to include a January 2017 lay statement and the Veteran’s reports to his August 2019 VA examiner, the Veteran explained that while stationed at this radar site, the radar screen developed a crack and he was asked to climb the tower to determine the crack’s location. After about 15 to 20 minutes of searching for the crack in the radar screen, several personnel on the ground began shouting for him to return to the ground because the radar had not been turned off. The Veteran reported that his head was “hot” after this incident but was unable to seek immediate medical attention. The Board additionally notes that September 1959 service treatment records indicate that the Veteran had an elevated white blood cell count. The Board finds the Veteran competent to describe operating on the radar screen. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran’s lay statements are also credible as they have been consistent throughout the appeal period and with his circumstances of service, to include his MOS as electrician. The Board further finds that the Veteran was exposed to non-ionizing radiation during this episode. The Court has taken judicial notice that radar equipment emits micro-wave type, non-ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). As such, the second Shedden element is satisfied. While non-ionizing exposure is not the type of radiation exposure addressed by 38 C.F.R. §§ 3.309 and 3.311, this does not preclude a Veteran from proving entitlement to service connection directly. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In a January 2017 letter, the Veteran’s private oncologist stated that the Veteran’s hairy cell leukemia has been in remission since 1994. However, he opined that studies have shown that there is correlation between hairy cell leukemia and radiation exposure. The private oncologist opined that “his diagnosis of malignancy may be related to his exposure to radiation during his service in Korea.” At an August 2019 VA examination, the VA examiner opined that the Veteran’s hairy cell leukemia is as likely as not related to his radiation exposure. The VA examiner noted that the Veteran was exposed to radiation while in service due to the incident described above. The VA examiner also noted that the Veteran’s September 1959 service treatment records showed an elevated white blood count and that a malarial smear was negative later. He ultimately reasoned that “with all reported history as well as . . . clearly elevated white counts at time of service . . . and no clear infectious etiology such as malaria, a relationship between leukemia and radiation exposure is more likely as not.” After a review of the record, the Board finds that the evidence in this case is at least in equipoise with regard to whether the Veteran’s hairy cell leukemia is related to his service. The Board affords probative weight to the January 2017 private opinion and August 2019 VA examination that it is “more likely as not” that the Veteran’s hairy cell leukemia is related to his service, as they are well-reasoned and based on familiarity with the Veteran, his course of treatment, and medical literature. See Black v. Brown, 10 Vet. App. 279 (1997); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no medical opinions in significant opposition associated with the claims file and VA is not free to ignore or reject them based on its own medical judgment. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Obert v. Brown, 5 Vet. App. 30 (1993). (Continued on the next page)   As reflected above, the Veteran has provided competent statements as to the specific type of exposure to non ionizing radiation in service is consistent with the circumstances, places, and types of his service. There is no evidence in the file to doubt these statements and so the Board finds the Veteran's account of exposure during service to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s hairy cell leukemia is related to service. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107. The appeal is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.