Citation Nr: 21064495 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-29 241 DATE: October 20, 2021 ORDER Service connection for residuals of a spleen disorder, including immune thrombocytopenia (ITP), is denied. FINDING OF FACT The Veteran's spleen disorder residuals are not etiologically related to herbicide agent exposure, or otherwise due to service. CONCLUSION OF LAW The criteria for service connection for residuals of a spleen disorder, including ITP, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1966. In a September 2020 decision, the Board of Veterans' Appeals (Board) denied his claim for service connection for a residuals of a spleen disorder, including ITP. He then appealed to the U.S. Court of Appeals for Veterans Claims (Court), which granted a joint motion in June 2021 to vacate the Board's decision and remand the claim for readjudication. Service Connection for Spleen Disorder Residuals The Veteran has maintained throughout this appeal that his disability, which includes ITP with hypersplenism, status post splenectomy and chemotherapy, is directly related to Agent Orange exposure in Vietnam. The Board previously denied service connection on this basis because there was insufficient evidence of a nexus between the disability and his presumed exposure to herbicide agents. See Board Decision at 3-4. The parties to the Joint Motion for Remand (Joint Motion) agreed that the Board failed to provide an adequate statement of reasons and bases with its 2020 decision. Specifically, the parties agreed that the Board did not explain why it afforded no probative value to the Veteran's April 2013 Statement in Support of Claim, in which he reported that a VA physician ("Dr. E.L.") "said that it is possible and most likely that Agent Orange is the cause of [his] problem." Joint Motion at 2. The parties did not identify any other inadequacies in the Board's statement of reasons and bases. The Veteran submitted additional argument in August 2021. He stated, in pertinent part, "[t]he doctor that removed my spleen [i.e., Dr. E.L.] would not write and sign a letter that my spleen was enlarged due to" Agent Orange. He made this same contention at hearing in May 2017 and in earlier correspondence. The Veteran also stated that he "was ordered to see doctors outside of VA." He believes those doctors were not impartial, and he appears to request that the Board discount "any statement they might have made." August 2021 Statement in Support of Claim at 2. While he did not identify any specific doctors or statements, the Board assumes he means the VA contract examiners who provided medical opinions on his claim. The Board has carefully reexamined the evidence of record, including the Veteran's April 2013 and August 2021 statements. The Board again finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may also be established on a presumptive basis for diseases associated with exposure to herbicide agents like Agent Orange. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to herbicide agents, and may be entitled to service connection for any of the following diseases: AL amyloidosis, chloracne or other acneform disease, Type II diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. Id. Only the specific diseases listed at 38 C.F.R. § 3.309(e) are subject to presumptive service connection on this basis. Nevertheless, a claimant may establish service connection for an unlisted disability on another basis, such as by showing proof of causation through competent evidence. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board explained in the 2020 decision that the Veteran is not entitled to presumptive service connection because he has never been diagnosed with a disease listed at 38 C.F.R. § 3.309(e), apart from his already-service-connected ischemic heart disease. That is still the case here. By his own account, "he does not have a formal diagnosis of Hodgkin's Disease." August 2014 VA Form 27-0820. The December 2019 VA contract examiner also confirmed that the Veteran does not have Hodgkin's disease or non-Hodgkin's lymphoma. There is neither lay nor medical evidence to the contrary in the record. As for direct service connection, the preponderance of evidence continues to weigh against the claim. The most probative evidence of record is the December 2019 VA contract examiner's nexus opinion. The 2019 examiner reviewed the claims file, including lay statements and medical articles submitted by the Veteran. The 2019 examiner explained that there is no scientific evidence to medically link ITP with hypersplenism to herbicide agent exposure, and determined that the disability is less likely than not related to service. In general, a medical opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the Board explained in the 2020 decision, the December 2019 opinion meets these criteria. The 2019 examiner provided a clear and coherent rationale based on the Veteran's medical history, including his history of herbicide agent exposure, as well as medical literature. The Veteran's vague allegation that this examiner may not have been impartial does not diminish the opinion's probative value. August 2021 Statement in Support of Claim at 2. On the other hand, the Veteran asserts that Dr. E.L. told him "it is possible and most likely that Agent Orange is the cause of [his] problem," although Dr. E.L. declined to write a letter to this effect. As discussed in the 2020 decision, the Veteran himself is a layperson. He thus lacks the expertise needed to competently link his disorder to service without additional evidence, like an opinion from a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran's 2013 Statement in Support of Claim (and any other similar statements in the record) not credible for two reasons. First, the Veteran's statement is inconsistent with his medical records, including VA treatment reports signed by Dr. E.L. These records describe the Veteran's ITP as "idiopathic," which means the cause is unknown. See e.g., May 2013 VA General Surgery Post-Operative Note. None of his medical records mention Agent Orange as a possible cause, let alone the most likely cause, of his ITP. Second, the 2019 examiner's opinion suggests that the Veteran's statement is not credible. Essentially, the examiner explained the "contention that his spleen was enlarged and failed to function properly as a result of herbicide exposure" is not consistent with the medical literature. In Miller v. Wilkie, the Court noted that when an examiner explains that a veteran's assertions are generally inconsistent with medical knowledge or implausible, the Board can weigh that when addressing a veteran's credibility. 32 Vet. App. 249, 259-60 (2020). The 2019 examiner did just that in this case. The examiner's opinion thus weighs against the Veteran's credibility, as the Board finds it improbable that Dr. E.L. would tell the Veteran his disability is most likely due to Agent Orange when there is no scientific evidence to support such a theory. Furthermore, even if the Board were to find the Veteran's 2013 Statement in Support of Claim credible, it would not change the outcome of the case. That is because Dr. E.L.'s purported comment about Agent Orange is not adequate or probative as a medical opinion. Again, the Veteran asserts Dr. E.L. told him "it is possible and most likely that Agent Orange is the cause of [his] problem." Unlike the 2019 examiner's opinion, this is a conclusory statement without any supporting detail or medical rationale. It does not sufficiently inform the Board of Dr. E.L.'s judgment on the medical question at issue. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Unlike the 2019 examiner's opinion, it does not provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. In sum, the Board does not find the Veteran's 2013 Statement in Support of Claim credible because it is not consistent with other evidence of record or with general medical knowledge. Even if this statement was credible, it would not be probative evidence of a nexus because it does not contain any medical reasoning from Dr. E.L. Either way, the Veteran has not met his "difficult burden of tracing causation to a condition or event during service." Combee, 34 F.3d at 1043. Accordingly, the preponderance of evidence is against finding that the Veteran's spleen disorder residuals are etiologically related to herbicide agent exposure, or otherwise due to service. The benefit-of-the-doubt rule is not applicable here. Gilbert v. Derwinski, 1 Vet. App. 49, 53(1990). The appeal must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.