Citation Nr: 21007615 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-31 945 DATE: February 10, 2021 ORDER Entitlement to service connection for anemia, to include as due to Agent Orange exposure is denied. FINDING OF FACT The Veteran’s anemia did not have its onset in service, was not manifest to a compensable degree within one year after discharge, was not continuous since service and is not otherwise related to service, to include as due to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for anemia, to include as due to Agent Orange exposure have not been met. 38U.S.C.§§1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1964 to December 1966, to include service in the Republic of Vietnam, and again from April 1972 to June 1981. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing has been associated with the record. In an October 2018 Decision, the Board denied the Veteran’s claim for service connection for anemia. In an October 2019 Order, the Court of Appeals for Veterans Claims (the Court) vacated the October 2018 Board decision and remanded the case to the Board for adjudication consistent with the terms of the Joint Motion for Remand (JMR). Entitlement to service connection for anemia, to include as due to Agent Orange exposure The Veteran contends that he suffers from anemia which had its onset in or is related to active service, to include his exposure to Agent Orange. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, certain disorders associated with exposure to herbicide agents in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 C.F.R. §§ 3.307, 3.309. Veterans who 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 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 C.F.R. § 3.307(a)(6)(iii). The August 2010 rating decision indicates that the RO verified the Veteran’s Vietnam service from June 1, 1965 to July 1, 1966. Therefore, the Veteran is presumed to be exposed to herbicide agents while on active duty. Here, the Board notes that while anemia is chronic condition listed under 38 C.F.R. § 3.309(a), it is not a condition that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e). Accordingly, the inquiry for the Board is whether the Veteran’s anemia was incurred in or is related to service, to include exposure to herbicides, if anemia was manifest to a compensable degree within one year after discharge or if the Veteran demonstrated continuity of symptoms of anemia since service. The Veteran contends that he had symptoms of anemia during service. Specifically, he cites treatment during service in June 1972 for chills after immunization shots; treatment in March 1979 for dizzy spells, shortness of breath and coldness in his hands; treatment in September 1979 for dizziness; and treatment in March 1981 for stuffy nose, headaches, dizziness, chest pain with coughing, and vomiting. The Veteran’s post-service treatment records indicate that he was first diagnosed with anemia in September 2008. At the time of an April 2009 VA Agent Orange Examination, the Veteran was also noted to have a diagnosis of anemia. The Veteran’s diagnosis of anemia was again confirmed during a July 2010 VA examination. Additionally, during a February 2018 VA examination, the Veteran was also noted to have a current diagnosis of anemia. Finally, a March 2019 VA treatment record shows treatment for normocytic anemia. While the Board notes that the Veteran was afforded a VA examination in February 2018, the examination was determined to be incomplete for adjudicative purposes by the Court’s October 2019 decision. Accordingly, the February 2018 examination is of no probative value. The Veteran was also afforded a VA examination in March 2020. Notably, the examiner indicated that the Veteran did not have a current diagnosis of anemia. Subsequently, the matter was before the Board in October 2020. Given the conflicting medical evidence showing a history of anemia, the claim was remanded to obtain an addendum medical opinion. The Veteran was then afforded an addendum medical opinion in December 2020. The examiner noted the Veteran’s reported symptoms of anemia during service and determined that the Veteran had a diagnosis of anemia that subsequently improved in 2019-2020. The examiner concluded that the Veteran’s anemia was not related to active service. With regard to the Veteran’s June 1972 in-service treatment for chills, the examiner indicated that the Veteran had a mild reaction to an immunization with no objective evidence of anemia. As to the Veteran’s March 1979 treatment for dizzy spells, shortness of breath and coldness in his hands, the examiner noted that the Veteran was diagnosed with anxiety and hyperventilation, and that there was no objective evidence of anemia. As to the Veteran’s September 1979 treatment for dizziness, the examiner noted that the Veteran had mistakenly taken too much Benadryl and was treated for the sedating effects of the antihistamine. Finally, as to the March 1981 treatment for stuffy nose, headaches, dizziness, chest pain with coughing, and vomiting, the examiner noted that the Veteran was diagnosed with viral gastroenteritis with no objective evidence of anemia. Further, the examiner concluded that as there was no evidence of anemia in service, and as the Veteran was not diagnosed with anemia until roughly 42 years after his exposure to herbicides, the condition was not related to active service to include Agent Orange exposure. The Board finds that the December 2020 medical opinion is highly probative, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board has considered the Veteran’s contentions that his anemia is related to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Veteran’s diagnosis of anemia 40 years after separation from service, fails to support a finding that the Veteran had continuous symptoms of anemia since service. Consequently, the Board gives more probative weight to the competent medical evidence. (Continued on the next page)   For the foregoing reasons, the Board finds that the preponderance of the evidence is against a finding that the Veteran's anemia is related to service, that anemia was manifest to a compensable degree within one year after discharge or that he had continuity of symptoms of anemia since service, and therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, the doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.