Citation Nr: 21062304 Decision Date: 10/07/21 Archive Date: 10/06/21 DOCKET NO. 10-49 524 DATE: October 7, 2021 ORDER Entitlement to service connection for chronic lymphocytic leukemia, to include as due to asbestos exposure or as secondary to service-connected pleural plaques (diagnosed as asbestosis), is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's chronic lymphocytic leukemia (CLL) manifested during service, was diagnosed within the first year after separation from service, or was otherwise etiologically related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for CLL, to include as due to asbestos exposure or as secondary to service-connected pleural plaques (diagnosed as asbestosis) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from September 1952 to September 1956. Unfortunately, during the pendency of this appeal, the Veteran died in June 2014. The Appellant, his surviving spouse, has been substituted for the Veteran in the claims pending at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran filed a notice of disagreement (NOD) in February 2010 and formally appealed his denial of service connection to the Board. In April 2014, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In April 2018, the Board issued a decision denying entitlement to service connection for CLL. Subsequently, the Veteran requested reconsideration of the decision. In May 2019, the Board issued a decision vacating the April 2018 denial and again remanding the claim to the AOJ. The Veteran's claim was then remanded by the Board for additional development both in September 2020 and April 2021. The Board finds that there has been substantial compliance with the April 2021 remand directives and as such will proceed with appellate review. Entitlement to service connection for CLL, to include as due to asbestos exposure or as secondary to service-connected pleural plaques (diagnosed as asbestosis) is denied. The Appellant contends that the Veteran's CLL was due to his active duty service, to include as a result of hazardous exposures to chemicals in the course of his service and exposure to asbestos, and/or secondary to his service-connected pleural plaques, diagnosed as asbestosis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that the Veteran had a current diagnosis of chronic lymphocytic leukemia. See September 2009 private treatment records. Therefore, there is evidence of a current disability during the appeal. As to an in-service event, injury or disease, the Veteran claimed that he was exposed to hazardous substances and asbestos while serving in the United States Navy. Additionally, the Veteran stated that he was stationed aboard the USS Pickaway while it was going under repairs and that he was exposed to asbestos at that time. The Veteran had a diagnosis of asbestosis and was service-connected for pleural plaques diagnosed as asbestosis. The Veteran's military personnel records reflect that he was stationed aboard the USS Pickaway from June 1955 to September 1956. Even though the Veteran's service treatment records do not reflect complaints or symptoms of CLL, the Board finds the Veteran's complaints that he was exposed to asbestos are consistent with the circumstances of his service, as reflected in his military personnel records. See 38 U.S.C. § 1154 (a). Therefore, the question remaining for consideration is whether there is a causal relationship between the Veteran's CLL and in-service exposure to asbestos and other chemicals. In that regard, the Board finds that the preponderance of the evidence weighs against finding that chronic lymphocytic leukemia began during service or is otherwise related to an in-service injury, event, or disease. The Veteran submitted a letter from his private primary care provider, Dr. D. F., in September 2009. Dr. D. F. stated that the Veteran had been a patient under his care for many years. Dr. D. F. indicated that "[the Veteran] had the onset of his CLL at a very early age. He was in his mid-30s. He also has ulcerative colitis, which is thought to be an autoimmune disorder. During his time aboard the ship, he was exposed to asbestos, and has evidence on chest x-rays of pleural plaques consistent with that exposure. He also has underlying obstructive lung disease and reactive airways disease. In addition to asbestos, he was exposed to a variety of volatile fluids, including but not limited to, diesel fuel, a variety of solvents, and carbon tetrachloride. He also stated to me that around 1955, the ship that he was on was in the region where some nuclear testing may have been ongoing. It is of concern to me given the patient's exposure history, combination of inflammatory bowel disease, and CLL that there may be some correlation. I suggested he discuss this with his oncologist[.]" While the Board acknowledges that this opinion letter does indicate that there may be "some correlation" between the Veteran's CLL and his exposures to asbestos and other hazardous chemicals during service, Dr. D. F.'s statement does not meet the requisite legal standard to be found probative on the issue of whether a nexus exists. The use of the words "possible," "may," "could be" or "can be" makes a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). Thus, the opinion lacks probative value on the inherently medical issue of a nexus between the Veteran's CLL and his exposure to asbestos during service. After a series of remands by the Board for adequate and complete evidentiary development, medical opinions were obtained in January 2021 and an addendum opinion was obtained in July 2021. Regarding the etiology of the Veteran's CLL, the January 2021 VA examiner stated that "[d]octors aren't certain what starts the process that causes chronic lymphocytic leukemia. What's known is that something happens to cause a genetic mutation in the DNA of blood-producing cells. This mutation causes the blood cells to produce abnormal, ineffective lymphocytes while the carcinogenicity of asbestos has been established in malignant mesotheliomas and lung cancers, no research has been found that indicates a causal relationship between asbestos and CLL. Therefore, the Veteran's CLL was less likely than not caused by the Veteran's service-connected pleural plaques (diagnosed as asbestosis)." The July 2021 VA examiner opined that "it is less likely than not that the Veteran's CLL was caused by his service-connected pleural plaques diagnosed as asbestosis, and it is less likely than not that the Veteran's CLL was aggravated beyond its natural progression by his service-connected pleural plaques." The VA examiner reasoned that "CLL is a dysfunction of the hematological system, characterized by leukocytosis. Pleural plaques are a dysfunction of the respiratory system, characterized by plaques in the lungs. Pathophysiologically, CLL and pleural plaques are separate and distinct conditions affect separate and distinct organ systems without any direct pathophysiologic pathway. Therefore, in consideration of the aforementioned narrative, in my opinion a greater than 50 percent causal nexus cannot be established between the CLL and service-connected pleural plaques." Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's CLL had its onset during his active service or is otherwise etiologically related to his active service. In reaching this conclusion, the Board affords greater weight to the VA examiners' opinions than the September 2009 private physician letter. Both VA examiners based their conclusions on independent reasoning and review of the Veteran's record and the appropriate medical literature. Accordingly, the Board finds that the January 2021 and August 2021 VA opinions are entitled to greater probative weight on the issue of a nexus between the Veteran's CLL and his active duty service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered whether service connection is appropriate for CLL as a "chronic disease." See 38 C.F.R. § 3.303 (b). Leukemia is included in the list of "chronic" diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with CLL in 1975, 19 years after his separation from active service. However, the Appellant has not argued, and the record does not show, that the Veteran was diagnosed with CLL during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 1975 without complaints and/or treatments for CLL is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran's CLL and his active military service or his in-service asbestos exposure, to include on a secondary basis. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.