Citation Nr: A21020193 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210601-163391 DATE: December 17, 2021 ORDER Entitlement to service connection for acute nonlymphocytic leukemia, including as due to mustard gas exposure, is denied. REMANDED Entitlement to service connection for basal cell carcinoma/squamous cell carcinoma, including as due to mustard gas exposure is remanded. FINDING OF FACT The evidence does not show the Veteran as having the current disability of acute non-lymphocytic leukemia. CONCLUSION OF LAW The criteria for entitlement to service connection for acute nonlymphocytic leukemia, including as due to mustard gas exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.316. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to April 1968. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with Department of Veterans Affairs (VA) decisions on their claim to seek review. This decision has been written consistent with the new AMA framework as the rating decision on the issue on appeal was issued after the implementation of the new law went into effect. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by a VA Regional Office (RO), also referred to as the Agency of Original Jurisdiction (AOJ). The Veteran filed a VA Form 10182 notice of disagreement (NOD) selecting the Board's Direct Review Docket in June 2021. As the Veteran chose the Direct Review Docket, the Board will consider only the evidence of record at the time the Veteran was notified of the May 2021 rating decision. 38 C.F.R. § 20.301. Entitlement to service connection for acute nonlymphocytic leukemia, including as due to mustard gas exposure. The Veteran contends that he is entitled to service connection for acute non-lymphocytic leukemia due to his service, including as due to mustard gas exposure. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Furthermore, the Veteran can establish presumptive service connection where the record establishes full-body exposure to nitrogen or sulfur mustard during active service together with the subsequent development of (1) chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: nasopharyngeal; laryngeal; lung (except mesothelioma); or squamous cell carcinoma of the skin; (2) a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease; or (3) acute nonlymphocytic leukemia. 38 C.F.R. § 3.316. As indicated above, both methods of service connection for nonlymphocytic leukemia require the Veteran to have been diagnosed with nonlymphocytic leukemia. After a thorough review of the claims file, the Board finds the Veteran has never been diagnosed with nonlymphocytic leukemia. As such, the Veteran's claim does not meet the elements under a direct or presumptive theory of service connection. For this reason, the Board finds service connection for non-lymphocytic leukemia is not warranted. REASONS FOR REMAND Entitlement to service connection for basal cell carcinoma/squamous cell carcinoma, including as due to mustard gas exposure. Under the AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). 38 C.F.R. § 20.802(a). A duty to assist error occurred in this case. The RO failed to obtain a medical examination for the Veteran's claim for service connection for basal cell carcinoma/squamous cell carcinoma. The claims file contains a December 2020 private treatment record diagnosing the Veteran with basal cell carcinoma, as well as a February 2021 private treatment record diagnosing the Veteran with squamous cell carcinoma. The Veteran, in a March 2021 statement, states he was likely exposed to nitrogen or sulfur mustard gas during service. The Board finds this evidence is sufficient to meet the low bar set by McClendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the VA has a duty to assist and provide the Veteran with a medical opinion for his basal cell carcinoma/squamous cell carcinoma. The matters are REMANDED for the following action: 1. Schedule the Veteran with the appropriate examination to determine the nature and etiology of any basal cell carcinoma and squamous cell carcinoma. The examiner is to clarify whether the Veteran has a current basal cell or squamous cell carcinoma. The clinician must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's basal cell and/or squamous cell carcinoma is related to or had its onset in service, to include exposure to mustard gas. The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. However, it is permissible to consider this as one factor in the determination regarding the origins of the claimed disability, providing there is also sufficient explanation as to why it is reasonable to have expectation of treatment in the circumstance presented. All opinion must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.