Citation Nr: 21073811
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 15-36 167
DATE: December 10, 2021

ORDER

Entitlement to service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits is granted.

FINDING OF FACT

The competent medical evidence of record shows that the Veteran's current acute myelogenic leukemia was, at least as likely as not, related to toxic herbicide exposure.

CONCLUSION OF LAW

The criteria for service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits have been met. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1966 to September 1968, including service in the Republic of Vietnam.  The appellant is the Veteran's surviving spouse.

This matter was previously before the Board in January 2021, at which time it denied the issues on appeal.  The Veteran appealed those denials to the Court of Appeals for Veterans Claims (Court).  In August 2021, the Court granted a Joint Motion for Remand (JMR), reversing the Board's prior decisions and remanding those claims for further development.  Specifically, the Court noted that the Board's January 2021 decision denying service connection relied on two inadequate examinations: one dated September 2014, which imposed a higher standard than the "at least as likely as not" equipoise standard, and a November 2020 examination, which relied on a National Academy of Sciences report and failed to discuss why the Veteran, in particular, is not entitled to service connection for AML.  Notably, the Court, in its August 2021 JMR, ordered that the above-mentioned examination reports may not be relied upon as evidence against the Veteran's claim.  The Court also ordered that the benefit-of-the-doubt doctrine be considered in any adjudication of the issue.  

While the August 2021 JMR also held that the Board failed to discuss positive evidence suggesting that AML is linked to exposure to TCE, or even to develop this theory, the Board finds a discussion of whether the record supports a TCE-based exposure theory to TCE irrelevant, as service-connection is granted based on Agent Orange exposure on a facts-found basis.

Having now considered the issue on appeal, the Board finds that there has been substantial compliance with the Court's remand directives.

Entitlement to service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits

The appellant is seeking entitlement to service connection for acute myelogenic leukemia (AML), as due to herbicide agent exposure.  Specifically, the Veteran claimed in his Notice of Disagreement that his AML stems from Agent Orange exposure during service.

The Board in this case finds that service connection for purposes of accrued benefits is warranted.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996).

Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, B-cell leukemias, respiratory cancers, ischemic heart disease, and Type 2 diabetes. 38 C.F.R. § 3.309(e).

In this case, after reviewing all evidence currently of record, the Board determines that service connection for acute myelogenic leukemia (AML) is warranted.  

First, the Veteran served in the Republic of Vietnam during the years between 1967 to 1971; this, and his credible testimony of exposure in service, means he is presumed to have been exposed to Agent Orange in service.  However, AML is not a disorder that VA considers presumed related to toxic herbicide agent exposure under §3.309.  Accordingly, the Veteran's leukemia cannot be attributed to his acknowledged herbicide agent exposure based solely on presumed exposure.   

Nonetheless, the Board finds that service connection for AML for purposes of accrued benefits is warranted because the evidence shows, by equipoise, a nexus between in-service exposure and current symptoms.

As an initial matter, the Veteran has a current diagnosis of AML.  According to treatment records from May 2014, analysis of a bone marrow and peripheral blood sample reveals a sufficient percentage of irregularly shaped immature white blood cells called "blasts" to warrant a diagnosis of AML.   

Moreover, the Veteran's April 2016 examiner notes that it is "not at all uncommon" for AML to present many years after exposure to herbicides.  The author, an oncologist with two decades of experience treating bone marrow disorders, also observes that AML peaks in the latter two decades of life, as was the case with the Veteran.  Accordingly, that the Veteran has not experienced symptoms of AML since service is not a proper basis for denying service connection for AML.

Third, the medical evidence of record indicates that the Veteran's AML is, at least as likely as not, linked to the Veteran's conceded in-service exposure to Agent Orange.  Specifically, the Veteran's non-VA physician, in a September 2014 opinion, states in rather direct terms that AO is a risk factor for development of AML and that it is at least as likely as not that his AML is a complication of his prior exposure.  While this conclusion rests on a "long suspicion and concern" about a link between Agent Orange and AML, it is positive evidence and favors a grant of service connection.

The Veteran's April 2016 non-VA examination report, authored by D.H., a hematology and oncology professor with two decades of experience, provides further context.  Dr. H. explains that Agent Orange is composed of benzene rings, and that the causal relationship between benzenes and leukemia and other blood related cancers is well-established.  Leukemogenesis, or the development of leukemia (to include AML), involves both exposure to certain environmental hazards and age related mutations that together transform cells into cancer.  Here, Dr. H. cites exposure to benzenes as a "plausible cause" of the Veteran's AML.  This conclusion is reinforced by the June 2019 non-VA opinion, which notes an "established link." as well as another opinion from Dr. H., this time authored in August 2020, after the Veteran's death.  Dr. H. cites literature from the American Cancer Society and the International Agency for Research on Cancer, and reiterates the connection between benzene exposure, such as Agent Orange, and cancer.  

The Board notes evidence, to include the Veteran's own testimony taken in October 2018, of the Veteran's voluntary self-exposure to tobacco smoke, which also contains benzenes.  The September 2014 VA examination, upon which the Board based prior denials of service-connection, also finds that the Veteran's exposure to tobacco smoke, as it was more recent, is more likely linked to the Veteran's AML.  

Aside from the Court's mandate not to rely on the September 2014 VA examination to deny service connection, the medical evidence of record does not support, or even suggest, the proposition that the most recent exposure is the more likely culprit in the Veteran's development of AML.  Moreover, despite the speculative nature of the positive evidence, there is no evidence of record (other than the September 2014 and November 2020 VA examinations, upon which the Court's JMR forbade reliance to deny service connection), weighing against a grant of service connection.  Therefore, regardless of the logic of the medical evidence to the contrary, the Board is required to apply the benefit of the doubt doctrine, and find that service connection in this case is warranted.  

The Board finds that the competent medical evidence of record weighs in favor of granting service connection for AML.  Accordingly, the Board, in this case, grants service connection for AML on a direct basis, for purposes of accrued benefits.   

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Z. Maskatia