Citation Nr: 21011752 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 20-16 810 DATE: March 2, 2021 ORDER Entitlement to service connection for chronic myeloid leukemia is granted. Entitlement to an initial rating in excess of 40 percent for benign prostatic hypertrophy with lower urinary tract symptoms is dismissed. Entitlement to an effective date prior to January 23, 2018 for the grant of service connection for benign prostatic hypertrophy with lower urinary tract symptoms is dismissed. FINDINGS OF FACT 1. The Veteran has a current diagnosis of chronic myeloid leukemia related to chemical and environmental exposures during active duty. 2. In January 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the claim of entitlement to an initial rating in excess of 40 percent for benign prostatic hypertrophy with lower urinary tract symptoms. 3. In January 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the claim of entitlement to an effective date prior to January 23, 2018 for the grant of service connection for benign prostatic hypertrophy with lower urinary tract symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic myeloid leukemia have been met. 38 U.S.C. §§ 1110, 5107(b); 38 U.S.C. §§ 3.102, 3.303. 2. The criteria for withdrawal of an appeal by the Veteran have been met regarding the claim for entitlement to an initial rating in excess of 40 percent for benign prostatic hypertrophy with lower urinary tract symptoms. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of an appeal by the Veteran have been met regarding the claim for entitlement to an effective date prior to January 23, 2018 for the grant of service connection for benign prostatic hypertrophy with lower urinary tract symptoms. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1989 to July 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, in pertinent part, the RO granted service connection for benign prostatic hypertrophy with lower urinary tract symptoms with an evaluation of 40 percent effective January 23, 2018 and denied service connection for chronic myeloid leukemia. In his February 2019 Notice of Disagreement, the Veteran disagreed with the denial of service connection for chronic myeloid leukemia and the effective date and evaluation of his service-connected benign prostatic hypertrophy with lower urinary tract symptoms. The issues were addressed in a February 2020 Statement of the Case, and the Veteran submitted his timely appeal in April 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript is of record. 1. Service connection for chronic myeloid leukemia is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has been diagnosed with his current disability since December 2012. See December 2012 pathology report (impression of nearly packed marrow with proliferation of the myeloid, lineage consistent with chronic myelogenous leukemia); see also September 2013 follow-up report (chronic myelocytic leukemia). The Veteran testified at the January 2021 Board hearing that he served in the military as an aircraft armament systems specialist which involved working on airplanes, missiles, bombs, and explosive material, loading the aircraft for either training or actual combat missions. He served in Iraq and testified to the smell of the burning oil fields. Maintaining the aircraft systems and weapon systems on a day-to-day basis included pre-and post-flight maintenance and repairs which involved chemicals and lubricants and degreasers, as well as working on engines while they were running and cleaning fuel leaks. The Veteran recalled that on occasion he was “soaked head to toe” with jet fuel. He testified that he had never been a smoker and had no family history of leukemia. The Veteran is competent to report what he experienced during service and his personal history, and there is no reason to doubt the Veteran’s credibility. Additionally, the Veteran’s personnel records support the Veteran’s statements regarding the nature of his duties in service and the medical records support his testimony regarding his medical history. See e.g., July 2007 health record (exposed to chemicals daily at job). The Veteran also submitted information about the chemicals he was exposed to including Centers for Disease Control and Prevention (CDC) facts about benzene, and material data safety sheets with a list of chemicals used such as fuel, petrolatum, solvents, lubricants, sealant, types of grease, and various other compounds. Regarding a nexus, the Veteran contends that his current chronic myeloid leukemia to service. See January 2018 Statement in Support of Claim (exposed to many and varied chemicals, most of them carcinogenic, burn bits, burning fuel bladders, and other hazards). He also submitted an article regarding leukemia risk factors from the University of Michigan which includes chemical exposure. Two medical opinions also accompany the Veteran’s claims file. At a March 2018 VA examination, the Veteran reported exposure to burn pits, burning fuel bladders, and other hazards of the Gulf War. The VA examiner documented the 2012 diagnosis of chronic myeloid leukemia and opined that it was less likely than not caused by or related to Gulf War environmental exposure because no chemical or infectious associations have been established with the disease. The March 2018 VA examiner also opined that it is less likely as not that the Veteran’s chronic myeloid leukemia is caused by or a result of service because his service treatment records are silent for it, he was released from active duty in July 2010, and his diagnosis was December 2012. However, the VA examiner did not explain the significance of the time gap. Basing an opinion on the lack of medical evidence to support a finding is impermissible, thus the opinion is afforded no probative value. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In a January 2021 letter, private physician I.C., who has seen the Veteran since at least 2012 as evidenced by medical records in the Veteran’s file, wrote he reviewed the Veteran’s service records and past medical history, and that the Veteran was a current patient. Noting the Veteran’s service overseas in Southwest Asia working as an aircraft armament craftsman with job duties such as monitoring, inspecting, cleaning, and repairing weapons and weapon systems, and responsible for inspecting, loading, positions, safeties, the downloads of all committed air munitions, explosives, and propellant devices on the aircraft, and loading and unloading of designation munitions on dozens of assigned aircraft and removing dirt, rust, and corrosion from metal parts, wrote he was exposed daily to chemicals such as aircraft fuel, solvents, grease. Doctor I.C. cited to the CDC that these chemicals contain benzene, which is known to be carcinogenic and cause damage to blood and that the CDC also indicates benzene causes cancer in humans, and long-term exposure to high levels of benzene can cause leukemia. Consistent with the medical record available for review and the Veteran’s statements, the doctor also noted the Veteran had no family history of leukemia, no smoking history, and no other chemical exposure after active duty. In his professional opinion, the Veteran’s currently diagnosed chronic myeloid leukemia is at least as likely as not caused by his in-service occupational exposure to chemicals from his job duties. The January 2021 private physician provided a rationale to support his opinion that the chemical exposures in service, found to be carcinogenic and cause damage to the blood from authorities such as the CDC, at least as likely as not caused the Veteran’s chronic myeloid leukemia, a form of a blood cancer. It was based on an accurate review of the facts and correctly considered lay statements as evidence. Therefore, the opinion is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). For the foregoing reasons, the weight of the evidence supports service connection for chronic myeloid leukemia. 2. The issues of effective date and evaluation of benign prostatic hypertrophy with lower urinary tract symptoms are dismissed. The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or an authorized representative. Id. “Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his or her appeal must include a “finding regarding whether [the appellant] understood the consequences of withdrawing his claims.” Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). At the January 2021 Board hearing, the Veteran testified that he wanted to withdraw his appeal of the issues of entitlement to an initial evaluation in excess of 40 percent and an earlier effective date for his service-connected benign prostatic hypertrophy with lower urinary tract symptoms. The undersigned Veterans Law Judge explained the consequences of withdrawing his claim as to those two issues, including with regard to potential consequence of a later effective date were the rating claim to be subsequently filed and granted and the inability to subsequently file a freestanding earlier effective date claim. Board Hearing Transcript, at 2-3. The Veteran testified affirmatively that he was aware of the implications and wished to withdraw. Thus, the Veteran’s withdrawal of these claims from appeal was explicit, unambiguous, and done with a full understanding of the consequences, and there therefore remains no specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). Accordingly, the Board does not have jurisdiction to review the appeal as to these claims and they are dismissed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.