Citation Nr: A21019550 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 190904-30395 DATE: December 7, 2021 ORDER Entitlement to service connection for erythrocytosis is denied. Entitlement to service connection for polycythemia vera is denied. FINDINGS OF FACT 1. There is no evidence of record within the Veteran's claim file showing that the Veteran's erythrocytosis was caused by an in-service event, injury or disease. 2. There is no evidence of record within the Veteran's claim file showing that the Veteran's polycythemia vera was caused by an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for erythrocytosis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311. 2. The criteria for service connection for polycythemia vera have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Navy from February 1983 to February 1987, during peacetime. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO) on August 5, 2019. The Veteran filed a notice of disagreement (NOD) on a VA Form 10182 on September 4, 2019. The Veteran selected the evidence docket. On February 19, 2019 the Appeals Modernization Act (AMA) went into effect. The rating decision on appeal was issued after the AMA went into effect. The Veteran's VA Form 10182 properly invoked the Board's jurisdiction. The Veteran selected the evidence docket for AMA review. Therefore, the Board considers the evidence of record associated with the claims file as of the date of the of the August 5, 2019 Rating Decision and during the 90-day period after the Veteran's VA Form 10182 was filed. In a letter dated September 18, 2019, the Veteran and his attorney were notified in writing that they had 90 days to submit additional evidence in support of the claim. Specifically, it was noted that the Board of Veterans' Appeals had received the Veteran's VA Form 10182 and placed the case on the Evidence Submission docket. The VA Form 10182 was in direct response to the August 5, 2019, Rating Decision and identified the issues on appeal as service connection for benign erythrocytosis and polycythemia vera. Therefore, the Board finds that the Veteran and his representative were provided with sufficient notice as to the window of time to submit additional evidence. The Board received a statement from the Veteran's attorney dated November 18, 2019, requesting an extension of an additional 60 days from the expiration of the 90-day evidentiary window to February 17, 2020. It was noted that the VA Regional Office (VARO) did not provide any notice of its certification or the issues certified. While no response to this letter by the Board is of record, the Board finds that there has been no prejudice to the Veteran regarding the claims on appeal as a result of this omission. In addition to the fact that clear and timely notice regarding the remaining time to submit evidence regarding the issues on appeal was provided in September 2019 and acknowledged by the November 2019 statement of the Veteran's representative, no decision was issued prior to February 17, 2020, by the Board and the Veteran's attorney did not submit any additional evidence in support of the claims on appeal. The only evidence submitted as of February 17, 2020, was in reference to coronary artery disease and hypertension issues that are not presently before the Board. The issue of entitlement to service connection for coronary artery disease is under the Legacy Appeal system and was remanded by the Board in March 2021. As such, appellate review will proceed on the issues outlined on the first page of this decision. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Service connection for erythrocytosis. See paragraph 2. 2. Service connection for polycythemia vera. The Board acknowledges that the Veteran has not been afforded a VA examination for his claim. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is only 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. The record is devoid of probative evidence suggesting the occurrence of an in-service event, injury, or disease, or that the Veteran's polycythemia vera and erythrocytosis manifested in accordance with a presumptive period. Further, the record is silent for any indication that the Veteran's polycythemia vera and erythrocytosis may be related to an in-service event. Having failed the second and third elements of McLendon, the Veteran was not entitled to a VA examination. The Veteran has not advanced any specific contention regarding the etiology of his polycythemia and erythrocytosis. The Board has reviewed the Veteran's entire claims file through the date that the August 5, 2019 rating decision was issued and from the date the Veteran submitted the VA Form 10182 on September 4, 2019 through the 90-day period ending on December 3, 2019. After a thorough review of the record, the Board finds that there is evidence of the Veteran having a current diagnosis of polycythemia vera and erythrocytosis; however, there is no indication that the Veteran's diagnosis is associated with service. There is no evidence of an incident, event, injury, or disease that would warrant service-connection. The date of the onset of the Veteran's polycythemia vera and erythrocytosis is also unclear. The Veteran has not provided evidence supporting or explaining the nature and etiology of his polycythemia vera and erythrocytosis. The Board recognizes that the Veteran has been diagnosed with benign erythrocytosis and that he believes his erythrocytosis and polycythemia are related to his military service. However, these facts alone fail to demonstrate that service connection is warranted. There is no evidence of erythrocytosis or polycythemia in military service and there is no competent evidence of record suggesting any such connection. The Veteran himself has also failed to provide any substantive argument or statement as to why he believes these conditions are somehow related to military service. The record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer an opinion as complex as linking erythrocytosis or polycythemia to any event or incident of his military service more than 30 years ago. As such, the Veteran's lay assertions fail to suggest that service connection is warranted. For all of the above reasons, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for polycythemia vera and erythrocytosis. In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.