Citation Nr: 21077023 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-17 183 DATE: December 28, 2021 ORDER Entitlement to service connection for acute myeloid leukemia (AML) is denied. FINDING OF FACT The Veteran's AML did not have its onset during active service or within one year of service discharge and is not otherwise due to active service, to include as due to presumed exposure to herbicide agents or to aircraft emissions. CONCLUSION OF LAW The criteria for service connection for AML have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from May 1964 to May 1968, including service in the Republic of Vietnam from December 1966 to December 1967. He died in January 2016. The appellant is his surviving spouse. See April 2016 Notification Letter (e.g., VA 20-8993, VA 21-0290, PCGL). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, May 2020, and August 2021, the Board remanded this matter for additional development. Entitlement to service connection for AML. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a disability, 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. For certain chronic disorders, including leukemia, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Service connection for certain specified diseases, including all chronic B-cell leukemias, may also be granted on a presumptive basis due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Even where service connection cannot be presumed, service connection may still be established on a direct basis. The appellant has consistently asserted that the Veteran's AML is due to his presumed exposure to herbicide agents during active service in Vietnam. The appellant has also otherwise contended that the Veteran's AML is due to aircraft emissions during active service. However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for AML. As to the first element of a service connection claim, a current disability, the Board finds that post-service VA and private treatment records document the Veteran's formal diagnosis of AML in January 2015. See October 2015 Medical Treatment Record Non-Government Facility. Regarding the in-service element of a direct service connection claim, the Board finds that service treatment records do not document complaints, treatment, or diagnosis of AML or related symptoms. See July 2015 STR Medical. The Veteran's April 1968 Report of Medical Examination at separation documents a normal clinical evaluation of the lymphatic system, without any notation of a leukemia defect or diagnosis. Additionally, the Veteran specifically denied cancer or any other relevant symptoms within a concurrent Report of Medical History at separation. Moreover, service treatment records do not otherwise document any reports or diagnosis of AML or other symptoms of leukemia. Given the above, the Board finds that the preponderance of the evidence is against a finding that AML had its onset during active service as discussed further below. Nonetheless, the Board has also considered the appellant's theory of entitlement that the Veteran's AML is a result of his presumed exposure to herbicide agents during active service. The Veteran's active service in Vietnam is confirmed by service personnel records, thus, he is entitled to the presumption of exposure to an herbicide agent during such active service, which is also sufficient to meet the in-service element of the appellant's service connection claim. Notably, however, AML is not one of the specified diseases for which service connection may be presumed based upon the Veteran's presumed exposure to herbicides during his service in the Republic of Vietnam. In this regarding, the Board highlights the July 2020 VA opinion that acknowledged chronic B-cell leukemias as having been linked to Agent Orange, but noted that there is no evidence of a causal relationship with herbicides/Agent Orange and AML. See July 2020 C&P Exam. The Board finds the July 2020 VA examiner's opinion to be highly probative as to this particular finding and supported by an adequate rationale. Given the above, presumptive service connection is not warranted as due to presumed herbicide exposure. Similarly, there is no probative evidence that the Veteran's AML first manifested within one year of service discharge, as the objective post-service treatment records document that AML was first diagnosed in January 2015, with onset of symptoms towards the end of 2014. See November 2019 Medical Treatment Record Non-Government Facility. The Veteran or appellant has not otherwise contended onset of his AML during military service. As such, presumptive service connection for leukemia as a chronic disease is also not warranted. Nevertheless, the appellant may still establish her claim on a direct basis by probative evidence which establishes that it is more likely than not that the Veteran's AML is directly due to his presumed exposure to herbicide agents during active service or exposure to aircraft emissions during active service. Here, the Veteran's military personnel records note the Veteran's duties during active service were a jet aircraft mechanic and aircraft maintenance specialist. See July 2015 Military Personnel Record. As such, the Board concedes exposure to aircraft emissions, as being consistent with the places, types, and circumstances of his service. However, following a review of the record, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's AML and his active service, to include as being due to his presumed herbicide exposure and exposure to aircraft emissions. The Veteran and appellant have both asserted that his treating physicians endorsed possible etiological relationship between his AML and hazardous materials present through his active duty service as an aircraft mechanic, including benzene and herbicide agents. See October 2015 VA 21-4138 Statement In Support of Claim and April 2017 Form 9. A review of the record shows that January 2015 private treatment record which noted the Veteran's diagnosis of AML and noted his possible Agent Orange exposure in Vietnam during service. See November 2019 Medical Treatment Record Non-Government Facility. However, this is not an adequate opinion as it does not specify the Veteran's AML is directly related to his in-service herbicide exposure. The Veteran also indicated only an endorsement by his treating physicians of a possible etiological relationship. Even if the Board were to consider the January 2015 private treatment record as an opinion, the speculative nature of the finding would render any opinion inadequate to support a basis of a grant. There also is no rationale provided, which also renders the opinion not probative. A review of the record also shows that the Veteran had submitted medical articles indicating an association may exist between benzene exposure and AML. See November 2015 Web/HTML Documents. The Board has considered the medical article evidence provided by the Veteran. However, such articles do not account for the specifics of the Veteran's medical history, constitute general research, and therefore have limited probative value. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). Here, the probative evidence of record is against the claim. In a September 2021 VA opinion, the examiner considered the articles submitted by the Veteran but noted that AML is a condition that arises acutely and is relentless without treatment. The examiner noted that had this leukemia been caused by exposures in service, it would manifest far sooner than 2015, 47 years post-service/post-exposure. The examiner noted that a review of the current, widely accepted, peer-reviewed literature does not establish remote exposures of the type claimed by the Veteran as a cause of AML decades later. Ultimately, after a review of current professional treatises and studies, the examiner opined it is less likely than not that the Veteran's AML was due to exposures while in service. Here, the examiner found that the articles submitted by the Veteran do not establish toxic exposures experienced by the Veteran as the cause of the Veteran's AML and it is unlikely that any toxic exposure would manifest greater than four decades after such exposure. See September 2021 C&P Exam. The Board affords the most probative value to the September 2021 VA opinion in conjunction with the July 2020 VA opinion, which are supported by sufficient rationales and are based upon thorough review of the claims file, in the context of the specific facts of the Veteran's case. Conversely, as noted above, the January 2015 treatment record is unsupported by a rationale. Additionally, the reference to another veteran receiving VA benefits for AML does not weigh in favor of a grant of the appellant's claim, as Board decisions are not precedential and apply only to the specific facts of the cases decided. See November 2015 BVA Decision. To the extent that the lay statements of record that assert that the Veteran's AML is related to his active service, to include as due exposure to herbicide agents and/or to aircraft emissions, the Board finds that the appellant is not competent to directly link the Veteran's AML to active service or presumed herbicide exposure, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the appellant's own statements of opinion are nonprobative evidence. In conclusion, the Board finds that the preponderance of the evidence weighs against the appellant's claim of entitlement to service connection for AML, to include as a result of presumed exposure to herbicide agents or to aircraft emissions. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.