Citation Nr: 21020908 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-57 244 DATE: April 8, 2021 ORDER Service connection for aplastic anemia is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s current aplastic anemia is related to active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for aplastic anemia 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 active duty in the United States Navy from June 1989 to June 1995, including service in the Southwest Asia theatre of operations during the Persian Gulf War. In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A copy of the transcript has been associated with the claims file. 1. Service connection for aplastic anemia is granted The Veteran asserts entitlement to service connection for aplastic anemia, maintaining that he developed the condition as a result of exposure to environmental toxins, including specifically benzene and/or polychlorinated biphenyls (PCBs) during his service in the Southwest Asia theatre of operations during the Persian Gulf War. See, e.g. January 2016 Statement in Support of Claim (VA Form 21-4138); October 2016 Veteran Correspondence; September 2020 Board Hearing Transcript. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, 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 a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Here, the record reflects that the Veteran had active service in the Southwest Asia theatre of operations during the Persian Gulf War. See, e.g., September 2017 Statement of the Case (reflecting that the Veteran served aboard a naval vessel that was “in the Arabian Sea during the Gulf War”); Certificate of Release or Discharge from Active Duty (DD Form 214). Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Nevertheless, the record does not indicate that the Veteran’s aplastic anemia is a manifestation of an undiagnosed illness or MUCMI without conclusive etiology or pathophysiology; accordingly, presumptive service connection is not warranted based on the Veteran’s Persian Gulf service. 38 C.F.R. § 3.317. Neither does the evidence show chronicity during service or continuity of symptoms after discharge, or aplastic anemia that manifested to a compensable degree within one year of service separation. Accordingly, the relaxed evidentiary provisions pertaining to service connection for chronic diseases are not satisfied. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. However, although service connection for aplastic anemia is not available based on the applicable presumptions, the Veteran may still establish entitlement to service connection by the “difficult burden” of producing competent and probative evidence that the claimed condition was actually caused by exposure to environmental toxins during active service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (when presumptive service connection for a disease is not available, the claim may still be established with proof of direct causation). Here, the Board concludes that the Veteran has a current disability that is related to exposure to environmental toxins during his active military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In this regard, the Veteran’s VA and private treatment records show the Veteran has a current diagnosis of aplastic anemia. See, e.g., May 2019 VA Hematology and Oncology Note (reflecting a problem list including “Severe Aplastic Anemia); November 2015 Record from A.M.W., M.D. (noting a diagnosis of aplastic anemia). Additionally, the Veteran has asserted in statements and testimony adduced throughout the pendency of his claim that he was exposed to environmental toxins, including specifically benzene and PCBs, on multiple occasions during his active service, including during a chemical fire aboard his ship in the summer of 1992 and as a result of smoke from burning oil wells in the Persian Gulf in 1992. See, e.g., September 2020 Board Hearing Transcript; December 2016 Notice of Disagreement (VA Form 21-0958); October 2016 Veteran Correspondence; January 2016 Statement in Support of Claim (VA Form 21-4138). The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); 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. The Board additionally finds his competent statements concerning exposure to smoke from both the chemical fire and burning oil wells to be credible. See Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). In this regard, as noted, the Veteran’s military records confirm his presence in the Southwest Asia theatre of operations during the Persian Gulf War. Additionally, the Veteran’s available service personnel records reflect that he served as a “firecontrolman” during his period of service from July 1992 to January 1993. See February 1993 Enlisted Performance Evaluation Report. Further, the Veteran’s assertions concerning exposure to environmental toxins including benzene and PCBs as a result of a chemical fire aboard his ship are bolstered by the sworn statements of two of his fellow servicemembers confirming the occurrence of the fire and attesting to the resultant chemical exposure. See January 2016 Affidavit of B.F. (describing the chemical fire resulting from “a small explosion in a monitor for a surface-search radar,” which produced “a great deal of smoke,” and stating that he heard the “Duty Electronics Technician . . . inform the . . . Watch Officer . . . that it was a PCB-filled transformer that ‘blew’ and the smoke was laden with PCB[s]”); January 2016 Affidavit of J.L. (noting that the Watch Officer and the Tactical Action Officer were “very concerned about the health-hazard effect of the PCB smoke” from the chemical fire and that the Watch Officer “arranged for the escape hatches and water-tight doors [to be] opened to air out” the area). See also Caluza v. Brown, 7 Vet. App. 498, 511, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Accordingly, the Board finds the Veteran’s statements concerning his in-service chemical exposures to be credible and consistent with the circumstances with his service. See 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the first and second elements for service connection, namely a current disability and an in-service incurrence, have been met. See Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67; 38 C.F.R. § 3.303(a). With respect to the third element, a nexus between the in-service incurrence and the disorder diagnosed during the pendency of the claim, the Board finds that the evidence is at least in equipoise as to whether there is a nexus between the Veteran’s current aplastic anemia and his active duty service. There is medical evidence of record indicating a relationship between the Veteran’s aplastic anemia and his in-service chemical exposures. Specifically, in a February 2018 Letter, Dr. N.R. found that the Veteran’s aplastic anemia was “as likely as not” caused by the Veteran’s in-service exposures to PCBs and benzene. See February 2018 Letter from N.R., M.D. Based on a review of the Veteran’s pertinent service records and post-service medical records, as well as additional medical scholarship and treatise evidence, Dr. N.R. determined that the Veteran’s “direct contact with polychlorinated biphenyls,” and his inhalation of the “fumes of the burning oil wells in Kuwait and southern Iraq” led directly to his development of aplastic anemia. Id. In so finding, Dr. N.R. additionally noted that the “timeframe of [the Veteran’s] exposure to these chemicals . . . to the onset of [the] symptoms [of his aplastic anemia] . . . confirms his exposure as etiology of his condition.” Id. (citing and attaching articles and treatises from the National Academies of Sciences, Engineering, and Medicine; the New England Journal of Medicine; and UpToDate concerning the relationship between exposure to PCBs and/or benzene and the later development of aplastic anemia). The Board finds Dr. N.R.’s February 2018 medical opinion to be especially probative as it is based on a factually accurate history and reflects a thorough understanding of the Veteran’s medical records and clinical history, as well as current medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion). Moreover, Dr. N.R. based his positive etiological determination that the Veteran’s aplastic anemia is related to his active service on the relevant evidence in this case, the examiner’s own medical knowledge and experience, and the opinion is fully articulated and supported by sound reasoning. See, too, Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians’ access to a Veteran’s medical records). The Veteran has also submitted additional treatise evidence supporting the contention that exposure to PCBs and/or benzene, including through smoke from burning unrefined oil and petroleum, can lead to the development of aplastic anemia. See April 2017 Veteran Correspondence and Attachments. See also Mattern v. West, 12 Vet. App. 222, 228 (1999) (holding that that a medical article or treatise “can provide important support when combined with an opinion of a medical professional”). The Board acknowledges that there is negative etiological opinion evidence of record in the form of the August 2017 VA examination and April 2018 addendum opinion. See August 2017 Hematologic and Lymphatic Conditions Disability Benefits Questionnaire (DBQ); April 2018 VA Medical Opinion DBQ. However, the Board declines to accept these opinions. See Wilson v. Derwinski, 2 Vet. App. 614 (1992) (The Board is free to assess medical evidence and is not obligated to accept a physician’s opinion.). Specifically, in support of his finding against a relationship between the Veteran’s aplastic anemia and his active service, the August 2017 VA examiner stated simply that there was “no medical evidence found in the medical literature, foreign and domestic that stated, suggested, or concluded that PCB exposure have caused aplastic anemia.” See August 2017 Hematologic and Lymphatic Conditions DBQ. This bare assertion, without any reference to the medical treatises or clinical studies reviewed, is entirely inadequate, especially considering the wealth of scholarly evidence regarding the relationship between PCB exposure and aplastic anemia submitted by the Veteran and by Dr. N.R., as discussed above. See Nieves-Rodriguez, 22 Vet. App. at 302 (“Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale].”). Further, the April 2018 addendum opinion is similarly inadequate, as the opinion disassociating the Veteran’s aplastic anemia from his active service is based solely on the finding by the National Academies of Sciences, Engineering, and Medicine (NASEM) in its 2016 Update of Health Effects of Serving in the Gulf War (Gulf War and Health: Volume 10) that there is ‘inadequate/insufficient evidence to determine whether an association exists” between deployment to the Gulf War and “[a]ny cancer[, or] . . . conditions of the blood and blood forming organs.” See April 2018 VA Medical Opinion DBQ. However, the Board notes that these statistical analyses derived from population studies-and the Secretary’s determinations as to whether a presumption for a given disease should be established based on NASEM’s reports-do not rule out the possibility of service connection based on direct scientific or medical evidence. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (“To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection.”). Moreover, the April 2018 opinion, based solely on the NASEM’s general finding that there was inadequate or insufficient evidence to associate service in the Southwest Asia theatre of operations with the later development of “conditions of the blood and blood forming organs,” failed to consider or address the specific evidence of the Veteran’s chemical exposure, discussed above, and ignored the probative report of Dr. N.R. and the medical treatises and clinical studies discussed therein. See Nieves-Rodriguez, 22 Vet. App. at 302. Accordingly, the Board finds that the August 2017 and April 2018 VA medical opinions cannot form the basis for a denial of entitlement to service connection for the Veteran’s diagnosed aplastic anemia. Therefore, taking into account the Veteran’s credible lay statements concerning his in-service chemical exposures, given the probative positive nexus to service established by the private opinion, and in light of the absence of any probative evidence to the contrary, the Board finds that, at the least, reasonable doubt exists as to the question of the origin of the Veteran’s aplastic anemia. When resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s aplastic anemia is as likely as not attributable to his active military service. Under VA law, in such a circumstance, the claimant must prevail. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection for aplastic anemia is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.