Citation Nr: 21010985 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-35 929A DATE: February 26, 2021 ORDER Service connection for leukemia due to herbicide agent exposure in service on a direct basis is granted on an accrued benefits basis. FINDINGS OF FACT 1. The Veteran was diagnosed and was treated for leukemia during the appellate period. 2. The Veteran served in Vietnam and is presumed to have been exposed to herbicide agents during service. 3. The currently diagnosed leukemia was caused by or is otherwise related to herbicide agent exposure in service. CONCLUSION OF LAW The criteria for service connection for leukemia have been met on an accrued benefits basis. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1967 to June 1970, to include service within the Republic of Vietnam. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, during the pendency of the appeal, the Veteran died in January 2016. The Veteran’s surviving spouse, the Appellant, submitted a request for substitution in February 2016, which was approved by the AOJ in an April 2016 memorandum. In February 2019, the Appellant testified before the undersigned Veterans Law Judge in a virtual hearing. This decision is being made under the “one-touch” program. A transcript of the hearing will be associated with the claims file, but the Board will proceed to adjudicate as the outcome of this decision is fully favorable to the Appellant. 1. Service connection for leukemia is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Leukemia is considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). Under 38 U.S.C. § 1116, a veteran who “served in the Republic of Vietnam” during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. See 38 C.F.R. § 3.309(e). The presumptive diseases may be service connected if it manifests at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Of all types of leukemias, only chronic B-cell leukemias (including, but not limited to, hairy cell leukemia and chronic lymphocytic leukemia) are presumptively linked to herbicide agent exposure. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Veteran was diagnosed with leukemia during the appellate period. See July 2015 private treatment records. The Veteran served in the Republic of Vietnam during the Vietnam War. See DD Form 214. As noted above, B-cell leukemias are presumptively connected to herbicide agent exposure in service. A VA medical opinion was obtained in April 2016 to determine if the Veteran’s currently diagnosed leukemia was a B-cell leukemia. The examiner, a physician, determined it was less likely than not that the Veteran’s acute myeloid leukemia was a B-cell leukemia based on clinically accepted medical principals. No further rationale was provided to explain this conclusion. Nevertheless, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). A November 2016 letter from Dr. A.A.K., the Veteran’s treating oncologist, indicated the Veteran presented with thrombocytopenia in July 2015. A July 2015 bone marrow biopsy was conducted, and the results showed mixed phenotype acute leukemia with myeloid/T-cell lineage, not otherwise specified. The Veteran underwent the treatment protocol for acute lymphoblastic leukemia, including CNS prophylaxis. Dr. A.A.K. concluded that the acute leukemia was most likely caused by dioxin exposure, a chemical found in herbicide agents, during service. After a review of the evidence, both lay and medical, the Board finds a preponderance of the evidence weighs in favor of the service connection claim for leukemia on a direct basis. The Board recognizes that the Court has not fully embraced a “treating physician rule” under which a treating physician’s opinion would presumptively be given greater weight than that of any other examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73. Regardless, the length of a medical professional’s opportunity or opportunities to examine a claimant may be considered in assigning probative weight. Id., 4 Vet. App. at 471-73. The November 2016 private VA medical opinion is highly probative as to the issue of direct service connection. Here the Veteran’s private treating oncologist considered the complex nature of the leukemia and determined that it was most likely related to herbicide agents in service. Although a VA medical opinion was not obtained as to direct service connection, one is not necessary to adjudicate the claim because the Board finds the November 2016 private medical opinion to be highly probative of the issue at hand. Therefore, resolving all reasonable doubt in favor of the Appellant, service connection for leukemia is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.