Citation Nr: 21076446 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-38 670 DATE: December 23, 2021 ORDER Entitlement to service connection for leukemia, to include as a disability occurring in a Persian Gulf veteran, as due to exposure to particulate matter, or as due to exposure to ionizing radiation, is denied. FINDING OF FACT The Veteran's leukemia was not incurred in or a result of his active-duty service, did not manifest within one year of such service, is not an undiagnosed illness or medically unexplained chronic multisymptom illness, is not associated with exposure to particulate matter, and the evidence of record does not support the inference that the Veteran was exposed to ionizing radiation. CONCLUSION OF LAW The criteria for entitlement to service connection for leukemia, to include as a disability occurring in a Persian Gulf veteran, as due to exposure to particulate matter, or as due to exposure to ionizing radiation, have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.311, 3.317, 3.320. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to January 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in February 2021 and a transcript of that hearing is of record. The Board previously remanded this claim in August 2021 for additional development, including a VA medical opinion. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). The Board will therefore proceed to adjudicate the Veteran's claim on the merits. Service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As discussed in the Board's prior remand, the Veteran has been diagnosed with chronic myelogenous leukemia from 2015. See May 2016 VA Examination Report at 1 (attributing diagnosis to November 2015); see also June 2016 Medical Treatment Records at 287 (providing October 2015 treatment note assessing leukemia as a new diagnosis). The Board therefore finds that the first Shedden factor has been met. The Veteran attributes his leukemia to exposure to "radiation, chemical and toxic fumes during [his] service in the Gulf War." See July 2016 Notice of Disagreement (NOD) at 3; see also January 2016 Correspondence (asserting radiation exposure from depleted uranium munitions, describing exposure to oil fires, and describing use of gas mask and protective equipment during artillery bombardment); see also February 2021 Transcript at 3 (asserting proximity of 500 yards to burn pits). The Veteran's discharge certificate reflects a military occupational specialty as a cannon crewmember, as well as receipt of the Southwest Asia Service Medal and Kuwait Liberation Medal. Because the Veteran's assertions of exposure to oil fires, burn pits, and artillery bombardment are consistent with the circumstances of his active-duty service, the Board finds that the second Shedden factor has been met as well. Service connection may be assigned for certain conditions on a presumptive basis, or without evidence of a direct nexus. Leukemia is among several conditions which may be presumptively service-connected as a chronic disease. See 38 C.F.R. § 3.309(a). However, service connection on this basis requires that the condition manifest within one year of the Veteran's active-duty service. 38 C.F.R. § 3.307(a)(3). As discussed above, the Veteran's leukemia was not diagnosed within this presumptive period. The Board notes the Veteran's assertion that he was "always diagnosed with some sort of pneumonia or flu" between 1993 and 2014. See February 2021 Transcript at 4; see also id. (asserting that flu-like symptoms manifested "three or four times per year"). This assertion is only partially supported by the Veteran's post-service medical records, which are largely unavailable prior to 2007 and which show cold or flu symptoms recurring on an annual basis between 2008 and 2010. See May 2014 Medical Treatment Records. These records also show that the Veteran declined to take an annual flu vaccine until approximately 2011. The Board is not prepared to find that the evidence discussed above is sufficient to show credible lay or medical evidence of continuity of symptomatology from the Veteran's active-duty service until his diagnosis. Further analysis of this condition as a chronic disease on a presumptive basis is therefore moot. Service connection on a presumptive basis is also available for certain conditions manifesting in Persian Gulf veterans. As an initial matter, the Board finds that the Veteran is a Persian Gulf veteran as contemplated by these regulations based on the discharge certificate discussed above. See 38 C.F.R. § 3.317(e)(1) (defining "Persian Gulf veteran" as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War"). However, service connection on this basis is assigned only for a qualifying chronic disability, defined as an undiagnosed illness or a medically unexplained chronic multisymptom illness, or for certain infectious diseases. See 38 C.F.R. § 3.317(a)(2)(i); see also id. at (c)(2) (providing applicable infectious diseases). A medically unexplained chronic multisymptom illness (MUCMI), in turn, is defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory anomalies. Id. at (a)(2)(ii). These regulations further provide that chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes or multiple sclerosis, will not be considered medically unexplained for these purposes. Id. As will be discussed further below, the evidence of record supports the conclusion that the Veteran's leukemia is not a MUCMI as contemplated by these regulations. Because the Veteran's leukemia has a clear diagnosis, is not a MUCMI, and is not one of the infectious diseases specified in 38 C.F.R. § 3.317(c)(2), further analysis of service connection on the basis of a disability occurring in a Persian Gulf veteran is moot. Service connection may also be presumptively assigned based on exposure to particulate matter. The Board finds that the Veteran is presumed to have been exposed to particulate matter based on the circumstances of his active-duty service as discussed above. See 38 C.F.R. § 3.320(3) (providing that veterans with a qualifying period of service are presumed to have been exposed to particulate matter); see also id. at (4) (providing that a qualifying period of service includes active-duty service in the Southwest Asia theater of operations during the Persian Gulf War). However, leukemia is not among the conditions which may be service-connected on this basis. See 38 C.F.R. § 3.320(2). Further analysis of service connection on a presumptive basis is therefore also moot. Service connection may also be assigned on a presumptive basis for certain chronic conditions manifesting in radiation-exposed veterans. See 38 C.F.R. § 3.309(d). These conditions include chronic myelogenous leukemia. Id. at (d)(2)(i) (including leukemias other than chronic lymphocytic leukemia). A "radiation-exposed veteran," in this context, is defined as a veteran who participated in a radiation-risk activity. Id. at (d)(3)(i). Radiation-risk activities are further defined by these regulations and include activities such as onsite participation in tests involving atmospheric detonation of nuclear devices, but do not include use of or proximity to depleted uranium munitions. See id. at (d)(3)(ii)(A)-(E) (listing radiation-risk activities). The Board therefore finds that the Veteran has not participated in a radiation-risk activity as defined by these regulations. Additional regulations are also applicable in claims based on assertions of exposure to ionizing radiation. See 38 C.F.R. § 3.311. In cases where it is determined that a veteran was exposed to ionizing radiation as a result of participation in atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or due to other activities as claimed, such veterans subsequently develop a radiogenic disease, and such a radiogenic disease manifests within a specified period of time, the case must be referred to the Under Secretary for Benefits for additional development. Id. at (b)(1)(i)-(iii). The Board notes that chronic myelogenous leukemia is also a radiogenic disease for purposes of these regulations. See id. at (b)(2)(i); see also id. at (b)(5)(ii) (providing that leukemia may manifest at any time after exposure). However, the Veteran has offered no evidence beyond his own assertions that use of or proximity to depleted uranium munitions produces exposure to ionizing radiation. These regulations specify that veterans may not be required to produce evidence substantiating exposure to ionizing radiation if such exposure is premised on participation in atmospheric nuclear weapons testing or occupation of Hiroshima or Nagasaki, Japan. See 38 C.F.R. § 3.311(a)(4)(ii). Because the Veteran's claim is not premised on either of these activities, competent evidence substantiating his assertions is required. "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]" Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Because the Veteran has offered no competent evidence supporting the inference that use of or proximity to depleted uranium munitions produces exposure to ionizing radiation, the Board finds that remand for further development by the Under Secretary for Benefits under 38 C.F.R. § 3.311 is not warranted. Having addressed the presumptive bases for service connection applicable in this case, the Board turns to the theory of direct service connection. As discussed in the Board's prior remand, the Veteran underwent a VA examination on this claim in May 2016. This examiner opined that the Veteran's leukemia was less likely than not due to his active-duty service, to include any toxic exposures, and was more likely due to a genetic mutation. See May 2016 VA Medical Opinion at 5. In reaching this conclusion, this examiner noted in pertinent part as follows: [Chronic myelogenous leukemia] accounts for approximately 15 to 20 percent of leukemias in adults... It has an annual incidence of 1 to 2 cases per 100,000, with a slight male predominance... Exposure to ionizing radiation is the only known risk factor... Based on data collected from May through December 1991, the carcinogenic and non-carcinogenic health risks from exposure to oil fire smoke were determined to be minimal due to lofting of the smoke above ground level and nearly complete combustion of most chemical substances... In addition, assays of metals and volatile organic compounds (including benzene) among troops indicated extremely low level exposure to harmful substances... It also is notable that there has been no indication of unexplained illnesses among the U.S. civilian fire fighters who were highly exposed to combusted and non-combusted products of damaged oil wells. [Depleted uranium] is a heavy metal which is less radioactive than natural uranium and poses minimal health hazard when external to the body, although the impact of DU on armored targets or the involvement of DU munitions in fires can result in localized aerosolization and increased exposure. Id. at 5-7. As discussed in the Board's prior remand, the Veteran subsequently submitted additional information in support of his claim. See August 2021 Board Decision at 7-8. This included a 2003 scientific study associating benzene and acute leukemia, as well as information from the Centers for Disease Control and Prevention addressing the sources and effects of benzene. See February 2021 Correspondence at 7-8; see also id. at 13-14. The Board therefore remanded this case for an updated VA medical opinion that accurately addressed the Veteran's genetic risk factors and addressed the additional information submitted by the Veteran. See August 2021 Board Decision at 8. This addendum opinion was provided in September 2021: The claimed [chronic myelogenous leukemia] condition was less likely than not... incurred in or caused by the result of exposure to burn pits, oil well fires, benzene or radiation resulting from the use of depleted uranium munitions. I have read [the Veteran's] e-file and the remand letter, transcripts[,] and lay statements. I reviewed the IOM study dated 2003. CML is an acquired abnormality that involves the hematopoietic stem cell. It is characterized by a cytogenetic aberration consisting of a reciprocal translocation between the long arms of chromosomes 22 and 9... The translocation results in a shortened chromosome 22 termed the Philadelphia (Ph1). This translocation relocates an oncogene called ABL from the long arm of chromosome 9 to a specific breakpoint cluster region (BCR) in the long arm of chromosome 22. The ABL oncogene encodes a tyrosine protein kinase. The resulting BCR/ABL fusion gene encodes a chimeric protein with strong tyrosine kinase activity. The expression of this protein leads to the development of the CML phenotype, through processes that are not yet fully understood. The presence of BCR/ABL rearrangement is the hallmark of CML, although this rearrangement has been described in other diseases. It is considered diagnostic when present in a patient with clinical manifestations of CML. The initiating factor of CML is still unknown, but exposure to ionizing radiation has been implicated, as observed in the increased prevalence among survivors of the atomic bombings of Hiroshima and Nagasaki. I found no objective evidence that the condition is due to any particular cause, to include [as a] result of exposure to burn pits, benzene[,] oil well fires, or radiation resulting from the use of depleted uranium munitions. Although the IOM study was reviewed, this study addresses the possible link in the setting of a study. I cannot speculatively link [the Veteran's] CML to his specific exposures as doing so would be completely speculative and cannot be backed up in this case specifically. [The Veteran] has the BCR/ABL1 mutation as well as the p210 mutation which mean[s] these mutations could have occurred at any time due to any particular cause. Any such link to [the Veteran's] exposure to burn pits, oil well fires, or radiation resulting from the use of depleted uranium munitions would be speculative. See September 2021 VA Medical Opinion. While not specifically addressed in the VA examination reports discussed above, the Board also notes that the Veteran's medical treatment records reflect a family history of leukemia as well. See May 2014 Medical Treatment Records at 155 (noting that the Veteran's father was previously diagnosed with leukemia). In cases where an examiner expresses an inability to provide a nexus opinion, "it must be clear on the record that the inability to opine on questions of... etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). "An examiner's conclusion that... [an] etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. However... before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." Id. at 390. "The phrase 'without resort to speculation' should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner... it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes." Id. The addendum opinion discussed above clarifies that "the initiating factor of CML is still unknown," which reflects limitations of knowledge in the medical community at large. The examiner also noted that the Veteran's genetic risk factors "could have occurred at any time due to any particular cause." The Board notes that "the valid application of current medical knowledge [can] yield multiple possible etiologies with none more likely than not the cause of a veteran's disability, such that a physician [can] only speculate as to the cause of a... condition. Jones, 23 Vet. App. at 390. In such cases, "an examination is not inadequate merely because the examiner states that he or she cannot reach a conclusion without resort to speculation[,]" and there is no requirement that the Board "proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant." Id. at 391. The Board finds that the September 2021 VA examiner's determination that a direct nexus cannot be made without resort to speculation is based on adequate consideration of the relevant and available evidence. In the absence of additional competent evidence to contradict the VA examiner's conclusion on this point, the Board concludes that the third Shedden factor has not been met. The assignment of service connection on a direct basis is therefore not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.