Citation Nr: 21006567 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-05 085 DATE: February 4, 2021 ORDER Service connection for obstructive polycythemia vera, to include as due to exposure to herbicide agents, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The competent and credible evidence is at least in equipoise as to whether the Veteran’s polycythemia vera, to include as due to exposure to herbicide agents, is related to his period of military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for polycythemia vera, to include as due to exposure to herbicide agents have been 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 on active duty in the U.S. Navy from September 1962 to November 1966. His decorations included the Armed Forces Expeditionary Medal (Vietnam). He died in April 2017. The appellant is his surviving spouse. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2015 and July 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. After the Veteran’s death, the appellant filed a request for substitution, which was granted. See 38U.S.C. §5121A. In April 2018 the Board reopened the previously denied claim of entitlement to service connection for polycythemia vera. This case was most recently before the Board in March 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service connection for obstructive polycythemia vera, to include as due to exposure to herbicide agents. The appellant contends that the Veteran’s polycythemia vera is due to his military service, including his exposure to herbicide agents. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Polycythemia vera is not among those diseases. Notwithstanding the foregoing presumptive provisions, service connection for a disability claimed as due to exposure to herbicide agents may be established on a direct basis by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is no dispute that the Veteran has a current disability. The evidence clearly shows that he had a current diagnosis of polycythemia vera. Nor is there any real dispute that the Veteran was exposed to herbicide agents in service. In June 2020 the Veteran’s exposure to herbicides was conceded based on his nautical service in the offshore eligible waters. There is also evidence that the Veteran’s current diagnosis of polycythemia vera is linked to his military service. In July 2015 the Veteran’s private oncologist opined that polycythemia is a condition that is consistent with exposure to Agent Orange. The Veteran was afforded a VA examination in August 2020. The examiner opined that it was less likely than not that the Veteran’s polycythemia vera was due to or incurred in service or exposures to herbicides. To support this conclusion the examiner noted that in consultation with a board certified HEME/ONC (hematologist/oncologist) physician an association was suggested but did not establish cause and effect. It was noted that Agent Orange may ultimately be implicated in the pathogenesis, but the current, widely accepted, peer-reviewed literature has not established cause and effect. Based on the examiner’s rationale it appears the examiner applied a causal standard rather than an “at least as likely as not” standard. The examiner stated that cause and effect was not established, but an association was suggested. The examiner’s underlying rationale is supportive of the Veteran’s claim as the opinion suggests an association between the Veteran’s exposure to herbicide agents and his polycythemia vera. Even though cause and effect has not been established, such a standard is not required to establish service connection. Although the July 2015 opinion does not contain rationale to support the conclusion, the opinion nevertheless supports the Veteran’s claim. Further the August 2020 examiner’s underlying rationale supports a connection between the Veteran’s conceded exposure to herbicide agents and his polycythemia vera. Taken together these opinions demonstrate that it is at least as likely as not that the Veteran’s polycythemia vera was related to his in-service exposure to an herbicide agent. After resolving any doubt in the Veteran’s favor, the Board finds that service connection for polycythemia vera is warranted. REASONS FOR REMAND Entitlement to a TDIU. The Board finds that more development is necessary prior to final adjudication of the issue of entitlement to a TDIU. In the decision above, the Board has granted service connection for polycythemia vera, and the Agency of Original Jurisdiction (AOJ) must now assign a rating a rating. Consideration of entitlement to TDIU is dependent upon the rating assigned for the Veteran's service-connected polycythemia vera, particularly where, as here, polycythemia vera is the Veteran’s only service-connected disability. The matters are REMANDED for the following action: Assign a rating for the Veteran's service-connected polycythemia vera and readjudicate the issue of entitlement to TDIU. Joshua Castillo Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.