Citation Nr: 21015470 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-11 547A DATE: March 17, 2021 ORDER Entitlement to service connection for microcytic hypochromic anemia, secondary to Agent Orange exposure, is denied. FINDING OF FACT The preponderance of the evidence shows that microcytic hypochromic anemia, as a congenital hereditary disease, did not first manifest during service, or progress at an abnormally high rate during service; nor did it manifest to a compensable degree within the applicable presumptive period; nor is it otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for microcytic hypochromic anemia, secondary to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1969 to March 1971. This matter comes to the Board of Veterans’ Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) which, in pertinent part, denied service connection for microcytic hyperchromic anemia. In April 2015 the Veteran and his wife testified before the undersigned Veterans Law Judge at a Board hearing at the RO. The Board remanded the case for additional development in June 2015, June 2016, and February 2020. The AOJ substantially complied the Board remand directives and the case has been returned to the Board for appellate review. 1. Entitlement to service connection for microcytic hypochromic anemia, secondary to Agent Orange exposure The Veteran contends that he is entitled to service connection for microcytic hypochromic anemia. The Veteran and his wife have provided statements and testimony as to the Veteran’s ongoing symptoms of fatigue, headaches, and bleeding that would not stop since his military service. See, e.g., April 2015 Board hearing transcript, pp. 12, 14. He further testified that he was told that he was anemic in service before he came back from Vietnam but that over the years after service, they were not sure what disorder he had. Id. at 16-18. In a May 2017 statement, he indicated that he had had his blood disorder since the 1970s when he left the military. He stated that he did not have the blood disorder when they gave him his physical examination at entry into service. He recalled that he was very athletic in high school and never was tired and lethargic. He noted that he was told to see his doctor as soon as he got home from the military but there were no VA hospitals that were close; so he just took over-the-counter drugs for the headaches and vitamins and whatever he could find for chronic tiredness; and he just endured the strange bleeding. The Board finds that the preponderance of the evidence is against finding that microcytic hypochromic anemia, as a congenital hereditary disease, first manifest during service; or progressed at an abnormally high rate during service; nor did it manifest to a compensable degree within the applicable presumptive period; nor is it otherwise etiologically related to service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. 3.303, 3.307, 3.309. Initially, the Board notes that the Veteran’s service records show that he served in the Republic of Vietnam, and as such, he is presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116 (f), 38 C.F.R. § 3.307 (a). Certain diseases have been determined to be associated with the use of herbicides in Vietnam (Agent Orange) and VA regulations identify those disease that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309 (e). Anemia is not a disease identified as presumptively associated with herbicide exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). However, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. The exclusion of a disability from the list of disabilities for which presumptive service may be assigned does not preclude service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Primary anemia may be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The Veteran’s service treatment records are silent for complaints of, or treatment for anemia or a blood disorder during active service. The Veteran noted on his separation examination that he was in good health. The separation examination report reflects no annotation for anemia or a blood disorder. Post-service treatment records reflect that starting in June 1977, the Veteran had hemoglobin readings ranging from 11.5 to 12.9 grams (g) of hemoglobin per deciliter (dL) of blood, which were noted as being low, consistently through 2002. An April 2003 VA treatment record shows the Veteran had microcytic hyperchromic anemia. In January 2004, it was confirmed that the anemia was related to chronic disease and was a component of beta thalassemia. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA General Counsel has held that service connection can be granted for congenital abnormalities which are aggravated by service. See VAOPGCPREC 82-90 (July 18, 1990) (a disease considered by medical authorities to be of familial or hereditary origin by its very nature preexist claimants’ military service; however, service connection for congenital, developmental or familial diseases could be granted if manifestations of the disease in service constituted aggravation of the condition). Congenital or developmental “defects” automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is generally precluded by regulation for such “defects” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003). VA General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). VA’s Office of General Counsel has distinguished between hereditary diseases and defects, emphasizing that the former is capable of improvement or deterioration while the latter is static. VAOPGCPREC 82-90 (O.G.C. Prec. 82-90). A “defect” is defined as an imperfection or structural abnormality, while a “disease” is any interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs. Id. The Board remanded the case in June 2015 so that a medical opinion could be provided as to whether the Veteran’s microcytic hypochromic anemia was the result of a congenital or acquired disorder; and if a disease, whether it underwent a permanent increase in service. It was noted that the Veteran’s and his wife’s competent statements as to symptoms of fatigue, headaches, and bleeding that had been slow to stop since military service should be considered. Thereafter, an October 2015 VA medical opinion was provided. After reviewing the October 2015 VA medical opinion, the Board found that additional remand was warranted in June 2016. The Board noted that while the examiner in October 2015 determined that the microcytic hypochromic anemia was a genetic disorder, and that it could not be determined without resort to speculation whether the microcytic hypochromic anemia was aggravated in service because there was no baseline blood count, the examiner did not offer any consideration of the Veteran’s and his wife’s statements concerning continued symptoms of fatigue, headaches, and bleeding that would not stop since his military service. Also, while the examiner appears to have suggested that the microcytic hypochromic anemia was a genetic disease, as opposed to a defect, this was not clearly explained. If it was a defect, then an opinion needs to be made whether the anemia was subject to a superimposed disease or injury during service. In November 2016, the same examiner noted that he had already said that the Veteran’s blood disorder was a disease and not a defect; and that since there was no baseline blood test that was done while in service, there was no way to determine whether the “Thassemia” was aggravated while in service. It was noted that the Veteran was never treated in service for fatigue. Thus, an opinion could not be made without resort to speculation. Another addendum statement was provided by the same examiner in March 2017. The examiner again stated that as he had stated in the past that an opinion could not be made without the resort to mere speculation, because the Veteran has never been diagnosed to have Thalasemia Trait and he has no base line laboratory to compare. However, the examiner also conversely stated that the Veteran was diagnosed to have Thalasemia Trait in 2003. A final statement from the examiner in April 2017 notes that he had considered the Veteran’s and his wife’s competent statements as to symptoms of fatigue and headaches but did not recall any statements of the Veteran or his spouse concerning a history of bleeding. Subsequently, the Board remanded the claim in February 2020 for an addendum opinion as to the whether it was at least as likely as not that the Veteran’s microcytic hypochromic anemia was at least as likely as not aggravated beyond its natural progression by his service, including his presumed exposure to herbicides in service; and if not, whether it was at least as likely as not that microcytic hypochromic anemia first manifested during service or within one year of discharge from service. It was requested that, if possible, a different examiner provide the opinion given the incomplete and inadequate opinions as outlined above. A medical examination and opinion were provided (by another examiner) in March 2020. It was noted that the Veteran had been diagnosed with beta thalassemia trait in 2003-2004 with no treatment required. The examiner found that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran had a mild anemia that was diagnosed by a specialist in 2003 as beta thalassemia trait. It was noted to be a minor condition and hereditary. A July 2020 addendum opinion was provided that the anemia was not aggravated by military service, as there was no record of it during service. The examiner also noted that it was not caused or aggravated by exposure to Agent Orange. The addendum opinion included a notation of the lay evidence of record, as noted in the Board’s February 2020 remand, including that the Veteran noted that he had his blood disorder since the 1970s when he left the military; that he did not have a blood disorder when they gave him his physical for entrance into the military; that he was very athletic in high school and never was tired and lethargic; that he experienced fatigue, bleeding, and headaches since service but was treated with over-the-counter medicine; and the laboratory findings showing hemoglobin readings of 11.8 as early as June 1977. In reviewing the evidence of record, while the Veteran has a current diagnosis of microcytic hypochromic anemia as evidenced by a January 2004 treatment record and primary anemia is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. While there are low hemoglobin readings within a few years after the Veteran’s separation from service, VA treatment records show the Veteran was not diagnosed with microcytic hypochromic anemia until approximately 2003, which is 32 years after his separation from service and 31 years outside of the applicable presumptive period. Even considering the first findings of low hemoglobin readings, these were not found within one year of his separation from service. See, e.g., June 1977 hemoglobin reading, which was six years after discharge from service, and five years outside the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of ongoing symptoms of fatigue, headaches, and bleeding that would not stop since his military service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of microcytic hypochromic anemia as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In addition, the Board finds the reports of continuity of symptomatology not credible. While the Veteran testified that he was told he was anemic in service and started feeling symptoms of fatigue and headache, as well as abnormal bleeding in service, he reported on his service treatment records on the separation examination that he was in good health. The internal inconsistency of these reports with later statements that he experienced ongoing symptoms of fatigue, headaches, and bleeding since service undermines the probative value of his statements as to onset of symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board gives more probative weight to competent medical evidence, which establishes that the microcytic hypochromic anemia was attributable to beta thalassemia trait, which is a heredity disease that was not aggravated by service. The examiner who provided the opinions in March 2020 and July 2020 reviewed the Veteran’s pertinent medical history and provided a medical opinion with adequate rationale with consideration of the Veteran’s lay complaints since service. The Board finds this opinion is entitled to probative weight, as the examiner’s opinion was based on previous medical examination and review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the opinions are of high probative value. While the Veteran believes his microcytic hypochromic anemia is related to an in-service exposure to herbicides, he is not competent to provide a nexus opinion in this case. As this issue is medically complex and requires the ability to interpret complicated diagnostic medical testing, the Board gives more probative weight to the competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Given that the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the Veteran’s favor; and his claim must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.