Citation Nr: 21075642 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-04 625 DATE: December 21, 2021 REMANDED Entitlement to service connection for myelofibrosis, to include as a result of herbicide exposure, is remanded. Entitlement to service connection for anemia, to include as secondary to myelofibrosis, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to myelofibrosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript of that hearing is now in the claims file. 1. Entitlement to service connection for myelofibrosis, include as a result of herbicide exposure, is remanded. 2. Entitlement to service connection for anemia, to include as secondary to myelofibrosis, is remanded. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to myelofibrosis, is remanded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The diseases associated with herbicide exposure for purposes of the presumption include certain forms of leukemia and multiple myeloma. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). If the veteran was exposed to an herbicide agent during active service, diabetes shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. In May 2010, VA published a Compensation & Pension (C&P) Service Bulletin that established "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." In explaining the need for the new procedures, the bulletin acknowledged that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. See Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea, 3 (May 2010). The substance of that bulletin was incorporated into an internal VA adjudication manual, known internally as the M21-1, a "live" document that provides internal guidance to VA adjudicators based on law, regulation, and policy. There are no regulatory or statutory presumptions in federal law or federal regulation regarding herbicide exposure in Thailand. However, by policy as described previously, VA will presume that a veteran who served in Thailand between February 28, 1961 and to May 7, 1975 was exposed to herbicide agents if they are Air Force veterans who served on a Royal Thai Air Force Base who affirmatively state they were involved with perimeter security duty, and only if there is additional credible evidence supporting their statement; or Veterans who served at a U.S. Army base in Thailand, who were members of a military police unit or assigned a military police MOS, and who affirmatively state their duty placed them at or near the base perimeter. This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Here, the Veteran asserts that he served in Thailand, and was exposed to herbicide agents in the course of his service there from July 1962 to June 1963. The Veteran's personnel records indicate the Veteran served at Royal Thai Air Force Base Nakhon Phanom as a USAF security policeman and dog handler, responsible for nightly patrol of the base perimeter during a 12-month period from August 1971 to August 1972. VA has previously conceded presumptive exposure to herbicide agents for this Veteran, and the Board will not disturb that finding. In addition, based on the Veteran's records and his April 2021 testimony before the undersigned Veterans Law Judge, the Board also finds for the purposes of this appeal that the Veteran's duties as a security policeman who patrolled the base perimeter that he was directly exposed to herbicide agents, and thus the provisions of Combee are satisfied in that regard for the Veteran's appeal. The Veteran has claimed entitlement to service connection for myelofibrosis, and also anemia and COPD, to include as secondary to the myelofibrosis. The Board notes that myelofibrosis is a form of chronic leukemia. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 626 (32d ed. 2012). The Board also notes that pursuant to 38 C.F.R. § 3.309(e) that the diseases associated with exposure to certain herbicide agents include all chronic B-cell leukemias, including but limited to hairy-cell leukemia and chronic lymphocytic leukemia, and multiple myeloma. However, the Veteran has never received a VA examination for his claimed myelofibrosis, and the Board is unable to ascertain whether the Veteran's diagnoses conform to an accepted disease for the purposes of presumptive service connection. The Board is mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Even if the Veteran is diagnosed with different disease other than those listed in section 3.309(e), the Board will note that upon remand, the evaluator must consider the possibility of the Veteran's conceded direct exposure to herbicide agents from his perimeter securities at Royal Thai Air Force Base Nakhon Phanom. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not received any VA compensation and pension examinations for his claimed myelofibrosis, COPD, or anemia, and thus remand is necessary for this purpose. In addition, upon completion of the VA examinations, the VA examiner(s) involved must consider both direct and presumptive service connection theories in the formulation of the opinions for service connection for the Veteran's claimed disorders. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995); Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for an in-person VA examination by the appropriate VA medical professional with expertise in myelofibrosis, anemia, and COPD to determine the nature and etiology of each of the Veteran's condition(s). The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question for each diagnosed condition: (a.) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's myelofibrosis, anemia, and or COPD condition(s) had their onset in service or are otherwise related to any in-service disease, event, or injury? (b.) If not, for the anemia and COPD conditions, is it at least as likely as not (probability of fifty percent or greater) that the anemia and/or COPD was caused by the Veteran's myelofibrosis or any other service-connected disability? (c.) If service-connected disability did not cause the anemia and/or COPD, is it at least as likely as not (probability of fifty percent or greater) that the anemia and/or COPD was aggravated (an increase in severity) by any service-connected disability? (d.) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the anemia and/or COPD by the service-connected disability, if any. The examiner must consider both presumptive and direct theories of service connection. The Board emphasizes here that VA has already conceded both presumptive and direct exposure to herbicide agents during the Veteran's service in Thailand from 1971 to 1972. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112(2). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.