Citation Nr: 21024155 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-39 633 DATE: April 22, 2021 REMANDED Entitlement to service connection for hairy cell leukemia is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1984 to August 1992, with additional service in the Air National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2019 and December 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for hairy cell leukemia. As noted in the prior remands, the Veteran contends that his hairy cell leukemia is due to toxic chemical exposure during his period of active duty. Specifically, he testified that he was exposed to benzene in JP-4 jet fuel, P-D-680 parts cleaner on a daily basis through inhaled and dermal contact, and a de-icing substance with type-1 ethylene glycol base. In this regard, the Board previously observed that, while the Veteran’s service treatment records were negative for any complaints, treatment, or diagnosis referable to hairy cell leukemia, such included an August 1985 report of exposure to fuels since entrance to service. Further, it was noted that the Veteran submitted evidence from the Environmental Protection Agency (EPA) indicating that benzene is a carcinogen, and a lifetime exposure to 0.004 parts per million benzene in the air will result in 1 additional case of leukemia in 10,000 people exposed. Finally, the Board found that, while currently in remission, the Veteran’s private treatment records reflect that he was diagnosed and treated for hairy cell leukemia beginning in October 2011. Thus, the Board remanded the case in order to afford him a VA examination so as to determine the nature and etiology of his hairy cell leukemia. In October 2019, following a review of the record, interview with the Veteran, and an examination, a VA examiner opined that the Veterans’ hairy cell leukemia is less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, he stated it was difficult to link the Veteran’s leukemia with several chemical exposures he endured during military service and, based on the medical journals and Material Safety Data Sheets of the chemical in question (which were cited in the opinion), there is a low risk of probability that his leukemia was caused by exposure to several chemical products during his military service. In a June 2020 addendum opinion, a different VA examiner opined that the Veteran’s hairy cell leukemia is less likely as not caused by or a result of chemical exposure during service. As rationale, he cited multiple studies that were negative for causality. However, in the December 2020 remand, the Board found such opinions to be inadequate for the purpose of determining service connection. Specifically, while the examiners noted that various medical studies did not find a causal relationship between chemical exposure and leukemia, they did not explain how such relate to the Veteran, or address the EPA report addressing the potential relationship between exposure to benzene and leukemia. Furthermore, in his representative’s October 2020 Appellant’s Post-Remand Brief, he cited additional medical studies and literature that discuss the carcinogenic effects that have been associated with benzene and other compounds found in jet fuel. Therefore, the Board again remanded the case for an addendum opinion that adequately addressed the medical literature in the Veteran’s case. In December 2020, the October 2019 VA examiner reviewed the record and issued another addendum opinion in which he opined the Veteran’s hairy cell leukemia is less likely as not caused by or a result of chemical exposure during service. In this regard, he stated he reviewed the aforementioned EPA report and several additional medical articles addressing the toxicity of benzene and the potential relationship to leukemia. In this regard, the examiner indicated that it was evident benzene is carcinogenic and, while medical articles reflect that certain types of leukemia can arise from benzene exposure, to include acute nonlymphocytic leukemia (ANLL), particularly the myeloid cell type (acute myelogenous leukemia AML), and, based on some studies, non-Hodgkin’s lymphoma (NHL) and multiple myeloma. However, the relevant literature did not suggest a relationship between exposure to benzene and the risk of hairy cell leukemia, a rare B-lymphoid chronic leukemia, in workers from various occupations with generally low levels of exposure. Further, the examiner cited to the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) regulations on benzene, which state, in pertinent part, “skin contact with liquid benzene shall be limited,” and advise that employers are required to provide medical examinations and laboratory testing for employees exposed to benzene at a concentration at or above 0.5 ppm as an 8-hour time-weighted average. In this regard, the Board notes the Veteran testified that, due to the lack of adequate gloves, his skin came in daily contact with jet fuels, which contained benzene in liquid form, and he was exposed to levels of benzene far higher than the accepted guidelines set by the EPA or OSHA due to such dermal exposure in addition to inhaled fuel vapors. The examiner further stated that, per OSHA medical requirements, if the Veteran had been exposed to more than the safety limit of benzene during service, this would have been reported and an incident report should have been made in his medical record to reflect his toxic exposure. Here the examiner’s rationale that the Veteran would have reported such exposure and a report placed in his medical record is predicated on the erroneous assumption that the Veteran and/or his superiors knew jet fuel contained benzene, understood benzene to be carcinogenic, and was familiar with OSHA regulations. However, the EPA report summary on benzene and its association with leukemia submitted by the Veteran was initially drafted in April 1992, which was four months prior to the Veteran’s separation from service. Further, the OSHA regulations requiring a medical examination due to benzene exposure seem to have been created in 2003, after the Veteran separated from military service. See https://www.osha.gov/Reduction_Act/1218-0129.html. In sum, the examiner relies on the lack of a report in the Veteran’s service records that may not have existed at such time. Therefore, upon review, the Board finds the December 2020 addendum opinion is inadequate for adjudication purposes. In this regard, as indicated previously, it is unclear whether the examiner considered the nature of the Veteran’s in-service exposure to benzene, to include liquid form, i.e., through the skin in addition to inhalation, which he alleges resulted in a higher rate of exposure than the average worker. Further, he relied on a lack of an in-service report of such exposure when it is highly unlikely one would have been generated. Therefore, the Board finds a remand necessary to obtain an addendum opinion from a different examiner, if possible, that adequately addresses such matters. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate VA clinician other than the examiner who provided the October 2019 and December 2020 opinions addressing the etiology of the Veteran’s hairy cell leukemia, if possible, for another addendum opinion on the matter. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hairy cell leukemia is related to his in-service exposure to toxic chemicals, to include benzene in JP-4 jet fuel, P-D-680 cleaner, and de-icing substance. In offering such opinion, the examiner should consider the nature of the Veteran’s in-service exposure to benzene, to include liquid form, i.e., through the skin in addition to inhalation, which he alleges resulted in a higher rate of exposure than the average worker. The examiner must discuss the medical articles and studies submitted by the Veteran, to include the aforementioned EPA report addressing the relationship between benzene and leukemia, and the medical studies and literature cited in his representative’s October 2020 Appellant’s Written Brief Presentation that discuss the carcinogenic effects that have been associated with benzene and other compounds found in jet fuel. If the examiner relies upon additional studies, articles, and/or medical literature, he or she should discuss the significance of such in light of the Veteran’s specific case. Finally, the examiner is advised that the absence of documentation as to the specific levels of exposure to benzene in the Veteran’s service records cannot serve as a basis for a negative opinion. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.