Citation Nr: A21017384 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 211011-189977 DATE: October 27, 2021 ORDER Service connection for chronic myelogenous leukemia (CML) is granted. FINDINGS OF FACT 1. The record shows that the Veteran served in the Republic of Vietnam (RVN) during service. 2. Resolving reasonable doubt in the Veteran's favor, his CLM is at least as likely as not related to chemical exposure during service. CONCLUSION OF LAW The criteria for service connection for CML have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1968 to June 1973, to include service in the RVN. In a June 2021 rating decision, the agency of original jurisdiction (AOJ) determined that new and relevant evidence had been received to reconsider the claim for service connection for CML, but denied the underlying service connection claim. The Veteran disagreed with that decision by filing an October 2021 VA Form 10182, Decision Review Request: Board Appeal, and elected the Direct Review docket. Under this election, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Entitlement to service connection for CML The Veteran contends that service connection should be established for CML, as he was exposed to herbicide agents as well as other chemicals, including benzene, while serving in the RVN. It is noted that a favorable finding has been made related to the Veteran's service in the RVN and resultant herbicide agents exposure. See June 2021 rating decision. The Veteran also has a current diagnosis of CML as evidenced by a November 2019 hematology report. It is also noted that the evidence does not show (and it is not contended) that the Veteran's CML had its onset in service or within one year of his separation from service; rather, as explained above, the Veteran contends his CML is related to his service as a result of the chemicals he was exposed to in service. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption does not include CML. Consequently, the herbicide agents exposure presumptive provisions of 38 U.S.C. § 1116 do not apply to the Veteran's claim for service connection CML. Nevertheless, a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange, is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In support of his claim, the Veteran has submitted copies of prior Board decisions that include grants of service connection for CML as a result of herbicide agents or other chemical exposure. However, 38 C.F.R. § 20.1303 instructs that previously issued Board decisions are not precedent. Instead, they "can be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." In a letter received in April 2021, the Veteran's treating oncologist, Dr. M.N., opined that it was at least as likely as not that the Veteran's CML was attributable to his exposure to Agent Orange (herbicide agents) while serving in RVN. The rationale for that opinion included citations to studies referenced in the 2018 Agent Orange report, which noted an increased association between Agent Orange and CML; a 2005 study conducted by the Australian Government's Department of Veterans Affairs, which found that the standard incidence ration for CML among Australian Navy veterans was higher than expected; the Veteran's medical history, which contained no evidence for any other risk factor that would predispose him to development of CML; the fact that there was no clear known cause for the mutation in the Veteran's bone marrow that would explain his CML; and the Veteran's exposure to Agent Orange as well as exposure to fuel oil during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current CML is related to service. While CML is not one of the conditions listed as being related to herbicide agents exposure, the Veteran's private physician has rendered the only nexus opinion of record, which relates the Veteran's CML to his in-service chemical exposure and contains an explanation for the rationale of that opinion. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for CML is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.