Citation Nr: A21020332 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200524-88509 DATE: December 21, 2021 ORDER Entitlement to service connection for cancer (acute myelogenous leukemia) is granted. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his acute myelogenous leukemia (AML) is at least as likely as not related to exposure to chemical solvents containing Trichloroethylene (TCE), benzene, during service. CONCLUSION OF LAW 1. The criteria for service connection for caner (AML) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force with active duty service from August 1980 to May 1986. The Board of Veterans' Appeals (Board) notes the rating decision on appeal was issued by the Agency of Original Jurisdiction (AOJ) in June 2018. The rating decision was issued under the legacy system and the Veteran submitted a timely notice of disagreement (NOD) in January 2019. On March 5, 2020, the AOJ issued a statement of the case (SOC). Then, on March 22, 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the March 2020 SOC. In May 2020, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Later in May 2020, the Veteran appealed the decision in a VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. So, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal (May 5, 2020). 38 C.F.R. § 20.301. This means any evidence added to the claims file after May 5, 2020, could not be considered when deciding the claim. 38 C.F.R. § 20.300. The Board notes the AOJ favorably found new and relevant evidence was received that warranted reopening the claim. The Board is bound by that favorable finding absent a showing of clear and unmistakable error. 38 C.F.R. § 3.104(c). So, the Board will proceed to the address the claim on its merits. 1. Entitlement to service connection for cancer (AML). The Veteran contends his cancer is related to exposure to chemical solvents containing Trichloroethylene (TCE), benzene, while serving in the Air Force as an armament systems specialist. See January 2019 NOD at 1. The question for the Board is whether there is sufficient evidence to find the Veteran's form of blood cancer (AML) is related to exposure to certain chemicals while working on airplanes. For the reasons discussed below, the Board concludes the evidence supports a grant of service connection. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the "benefit of the doubt" when the evidence is approximately balanced. Id. at 53. Beginning with the Veteran's service, at entrance he described his health as good. See January 1980 Report of Medical History at 1. Also, the military doctor who examined him did not note the presence of any disorder. See January 1980 Report of Medical Examination During service, the Veteran worked as an armament systems specialist whose responsibilities included ensuring the parts of a plane that house missiles, bombs, on B-52s and F-15s worked properly. See DD214; December 2017 Statement; March 2020 Statement at 1; January 2013 Airmen Performance Report at 1 (noting Veteran worked on F-15 airplanes); July 1982 Airman Performance Report at 1 (noting Veteran worked on B-52 airplanes). To that end, he had to keep the equipment clean. He used cleaning products which listed TCE and benzene as ingredients. Even though he was provided gloves to perform his duties, like degreasing airplane parts, it was a common practice among his group to remove their gloves when cleaning items. See March 2020 Statement at 1. Some of the environments he worked in were enclosed spaces with little ventilation, like the compartments in B-52s that house bombs. So, fumes from cleaning products tended to linger. Masks that filtered toxins were not provided. Id. at 2. When the Veteran underwent his May 1986 separation examination, he reported chest pain and a cyst on his left hand; he described his overall health as good. See Report of Medical History. The military doctor who examined the Veteran's left hand cyst noted it did not cause any symptoms, to include pain. As to the Veteran's reports of chest pain, the doctor noted chest pain was observed in 1983, which subsided with rest. See May 1986 Report of Medical Examination at 2; December 1983 Record by C.B.W., PA (noting complaint of chest pains over the last week and diagnosis of chest wall pain). In November 2017 (about 31 years following service), the Veteran was diagnosed with AML, a type of blood cancer. Based on medical evidence describing the Veteran's history with the disease, he did not observe symptoms of cancer until October 2017, when he developed fatigue and mouth ulcers. Medical testing showed the Veteran had cancer. See November 1, 2017, Private Medical Record at 3; April 2018 VA Disability Benefits Questionnaire (DBQ) at 1; April 2020 VA DBQ at 4. The Veteran's first VA disability examination for cancer was conducted in April 2018. At that time, he was found to have active cancer (AML) and was undergoing treatment. See VA DBQ at 1, 2. The VA examiner assessed whether the Veteran's cancer is due to service; she concluded it is not. See April 2018 VA Medical Opinion at 5. She mentioned medical literature indicates TCE and benzene are linked to the development of cancer, but explained she did not see enough evidence in the record to find the Veteran was exposed to those chemicals during service. She also indicated that, even if the Veteran was exposed to TCE, benzene, during service, she would need to assess whether the amount of exposure was harmful before opining on the likelihood of a nexus. See June 2018 VA Medical Opinion at 1. In January 2019, the VA received a medical opinion from V.A.C., MD, a private provider, who opines the Veteran's cancer is due to exposure to TCE, benzene, during service. See Medical Opinion at 4. Dr. V.A.C. acknowledged the Veteran's separation examination and service medical records did not indicate the presence of cancer during service, but explained scientific literature supports finding the Veteran's cancer is due to service. She explained the Veteran's military service led to regular exposure to the chemicals TCE and benzene. She discussed scientific literature that links TCE, benzene, to the development of the Veteran's form of cancer (AML). She noted she has specialized knowledge in the areas of occupational medicine and environmental health and, based on her medical knowledge and review of scientific literature, finds the Veteran's cancer is more likely than not related to exposure to TCE and benzene during service. During the Veteran's April 2020 VA examination, he reported his cancer is in remission. See VA DBQ at 4. Following the examination, the VA examiner concluded the Veteran's cancer is not linked to exposure to TCE, benzene, during service. See April 2020 VA Medical Opinion at 2, 4. The examiner did not question whether the Veteran was exposed to those chemicals. Neither did she question whether his level of exposure to those chemicals was harmful. Instead, she questioned whether the development of AML in this case was similar enough to a general number of AML cases to find a causal connection. Id. at 2. She explained AML caused by toxins tends to develop within 20 years and this Veteran's cancer developed in 31 years; therefore, it is less likely than not due to TCE or benzene exposure during service. Id. The examiner did not discuss any other details of the Veteran's service that may have impacted the development of cancer. In the May 2020 rating decision on appeal, the AOJ favorable found the Veteran was exposed to TCE and benzene during service. See Rating Decision at 2. Turning to the Veteran's claim for disability compensation, the Board finds the Veteran has established entitlement to service connection for cancer. He has been diagnosed with a form of blood cancer (AML), which he believes is due to exposure to certain cleaning solvents containing the chemicals TCE and benzene. Although the AOJ did not find TCE, benzene, caused the Veteran's cancer, it favorably found he was exposed to those chemicals while working on airplanes. The Board is bound by this favorable finding absent a showing of clear and unmistakable error. 38 C.F.R. § 3.104(c). With regards to the likelihood that the Veteran's exposure to TCE, benzene constitutes an in-service injury, the Board resolved doubt in the Veteran's favor. Although no item of medical evidence in the record goes so far as to state TCE, benzene definitely causes cancer, the medical nexus opinions in the claims file acknowledge those chemicals are linked to the development of cancer. See April 2018 VA Medical Opinion at 6 (noting medical literature supports a possible link between exposure to TCE, benzene, and cancer); January 2019 Medical Opinion by Dr. V.A.C. (asserting TCE, benzene, have been linked to the development of AML); April 2020 VA Medical Opinion at 2 (noting scientific evidence suggests benzene can cause cancer with 20 years of exposure). Given that the medical professionals who prepared the April 2018, January 2019, and April 2020 medical opinions indicate exposure to TCE, benzene can be harmful, any doubts that the Veteran's exposure to those chemicals was harmful were resolved in his favor. Gilbert, 1 Vet. App. at 54. Although the April 2018, January 2019, and April 2020 medical opinions did not agree the Veteran's exposure to TCE, benzene, caused cancer in this case, the Board favors the January 2019 opinion that concluded it did. Beginning with the April 2018 VA medical opinion that weighed against a nexus, the examiner based her opinion on her lack of certainty the Veteran was exposed to TCE and benzene during service. See VA Medical Opinion at 5. Even though the Board found some exposure to those chemicals occurred during service, the examiner's opinions on the matter did not help decide the issue of a nexus. This is because the examiner indicated she would need to determine the level of exposure before opining on a nexus; therefore, the opinion has no probative value towards finding a nexus. See June 2018 VA Medical Opinion at 1. The examiner who prepared the April 2020 VA medical opinion provided a reasoned explanation for concluding there is no nexus, but based her opinion on one particular aspect of the Veteran's claim; that is, the time it took his cancer to manifest. The Board does not question the examiner's medical conclusion. But, without more, it is not apparent to the Board if other relevant factors particular to this claim, like the frequent exposure to TCE, benzene, over the course of several years distinguish the claim from the typical cancer case referred to in the April 2020 opinion. The probative value of the opinion was diminished given that the examiner limited her analysis to one aspect of the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) The doctor who prepared the January 2019 medical opinion considered more factors than the time it took the Veteran to show signs of cancer before finding a nexus. Even though the medical doctor who prepared the January 2019 opinion did not assert she was certain the Veteran's exposure to TCE, benzene, caused his cancer, she provided the level of medical certainty required under VA regulations to decide the claim. Jones v. Shinseki, 23 Vet. App. 382, 388 (2010). Here, the doctor referenced medical literature supporting the proposition that TCE, benzene, is linked to the Veteran's particular form of cancer. Given that she estimated the Veteran was frequently exposed to those chemicals, it is apparent to the Board she found his exposure significant enough to conclude there is a greater than 50 percent probability it is causally connected to the Veteran's cancer. Because she is qualified to provide an etiological opinion, the Board finds it probative. Considering she also has an expertise in occupational medicine and environmental healthboth areas of knowledge highly relevant to this claimthe Board finds the January 2019 medical opinion highly probative towards finding a nexus. In this case, the evidence weighs in favor of finding a nexus. The examiner who prepared the April 2018 VA medical opinion was of no probative value because it expressed doubt about a matter the AOJ found in the Veteran's favor. The April 2020 VA opinion did not consider all the particulars of the Veteran's claim. In contrast, the January 2019 opinion discussed more relevant factors and provided a nexus opinion that was sufficient to decide the claim; therefore, the Board favors January 2019 opinion that concluded there is a causal connection (nexus) between the Veteran's exposure to TCE, benzene, during service and blood cancer. Given that the record reflects the Veteran has cancer, exposure to certain chemicals (TCE, benzene) linked to the development of cancer, and medical evidence supporting a nexus between themthe Veteran has established entitlement to service connection on a direct basis. 38 C.F.R. § 3.303. Accordingly, service connection is granted for AML. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.