Citation Nr: 21069760 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 19-01 047 DATE: November 19, 2021 ORDER Service connection for leukemia is granted. Service connection for obstructive sleep apnea (OSA), as secondary to the service-connected allergic rhinitis, is granted. FINDINGS OF FACT 1. The Veteran's leukemia is etiologically related to his active service. 2. The Veteran's OSA is etiologically related to his service-connected allergic rhinitis. CONCLUSIONS OF LAW 1. The criteria for service connection for leukemia have been met. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for OSA, as secondary to the service-connected allergic rhinitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1983 to November 1998. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Service connection can also be established through application of a statutory presumption for chronic diseases, like leukemia, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Leukemia The Veteran seeks service connection for leukemia, which he asserts is due to his having been exposed to toxins in service, to include as a result of working around burn pits in Iraq. He underwent a VA examination addressing hematologic and lymphatic conditions, including leukemia, in November 2018. The examiner noted that the Veteran had been diagnosed with leukemia in August 2017. Thus, the current disability prong of this claim has been established. The Veteran was not diagnosed with leukemia until 2017, nearly 20 years after service separation. He has also not asserted that his leukemia symptoms began in service. As this condition did not manifest to a compensable degree within a year of his separation from service, and as a continuity of symptoms has not been established, service connection for his leukemia is not warranted on a presumptive basis. However, service connection can still be established on a direct basis if the evidence shows that his leukemia is medically related to any incident of his service. In this case, such has been shown. At the May 2021 hearing, the Veteran testified that, while serving in Iraq, he was near burn pits where chemicals and trash were burned and that he inhaled fumes from the pits. An April 2019 VA oncology clinic reevaluation treatment note includes a statement from his provider which indicates that his two deployments to Iraq exposed him to the burn pits daily. The provider opined that, because the Veteran had no other history of toxin exposure outside of service, it was more likely than not that his leukemia was associated with his in-service toxin exposure, including those related to working around burn pits. This medical opinion links the Veteran's leukemia to incidents of his service, including in particular the toxins to which he was exposed near burn pits in service, and substantiates this claim. The November 2018 VA examiner opined against service connection for the Veteran's leukemia. While the Board of Veterans' Appeals (Board) cannot ignore or disregard this VA examiner's medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Because this examiner did not address the Veteran's burn pit exposure as being a potentially causative factor in his leukemia development, the Board affords this opinion no probative weight in countering the positive nexus opinion of record linking his leukemia to his toxin exposure from working in proximity to burn pits in service. In light of the above, the evidence of record regarding whether a nexus exists between the Veteran's leukemia and his service is in favor of the grant of service connection for this disability. The VA treatment provider's opinion, although lacking any references to medical literature in support of its contentions, is more probative than the VA examiner's incomplete negative nexus opinion. Accordingly, in affording the Veteran the benefit of the doubt, the Board finds that his leukemia is at least as likely as not due to his in-service toxin exposures. His claim for service connection for leukemia is, thus, allowed. OSA Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). 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) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran seeks service connection for OSA, which he maintains is secondary to his service-connected allergic rhinitis. The medical evidence of record confirms that the Veteran was diagnosed with OSA in June 2017. He is also service-connected for allergic rhinitis (throughout the period on appeal). Thus, the only issue remaining to be resolved for this claim of service connection is that of a medical nexus between the Veteran's OSA and his allergic rhinitis. In a written statement dated in May 2021, the Veteran's private provider, Dr. K.B., MD, explained how the Veteran's allergy symptoms make his OSA more difficult to manage, as they interfere with his CPAP being able to control his OSA. This opinion establishes a medical nexus between the Veteran's OSA and his allergic rhinitis, in that his OSA is aggravated (i.e., made worse) by his allergy symptoms interfering with his ability to treat this condition. Thus, the requirements for service connection on a secondary basis for OSA have been established, and secondary service connection is warranted for the Veteran's OSA. In reaching this decision, the Board acknowledges that a December 2017 VA sleep apnea examiner opined against secondary service connection for the Veteran's OSA. However, a thorough review of this VA examiner's negative nexus opinion regarding secondary aggravation reveals that the incorrect legal standard for secondary aggravation was used in his opinion. Rather than addressing whether the Veteran's allergic rhinitis aggravated (i.e., made worse) his OSA, the examiner merely concluded that the Veteran's OSA, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. Significantly, there is no evidence that the Veteran's OSA pre-existed his active service, as it was diagnosed in 2017, nearly 20 years after the Veteran separated from service. Further, the rationale did not address the effects of the Veteran's allergies on inhibiting treatment for his OSA. Thus, it does not contradict the private opinion rendered by Dr. K.B. As such, the Board finds this opinion to hold no probative value weighing against the positive private nexus opinion submitted by Dr. K.B. in May 2021. Although this examiner also opined against secondary service connection in that the Veteran's OSA was not caused by his allergic rhinitis, such opinion also does not contradict the positive opinion establishing secondary aggravation, rather than causation. Although not claimed by the Veteran, the Board has also considered whether a direct service connection is warranted for his OSA. He has provided no argument linking this condition directly to his service, and there is no other evidence of record which supports a medical nexus between his OSA and any incident of service. Lacking a medical nexus connecting the conditions to active service, a claim for direct service connection for his OSA is not warranted. As the Veteran's (CONTINUED ON NEXT PAGE) OSA has been shown to have been aggravated by his service-connected allergic rhinitis, service connection for OSA on a secondary basis is established, and the claim is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.