Citation Nr: 21027954 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-46 046 DATE: May 7, 2021 REMANDED Entitlement to service connection for hairy cell leukemia is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from December 1984 to January 1985, with additional service in the Washington Army National Guard from June 1987 to December 1991 and with the California Army National Guard from January 2006 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. Entitlement to service connection for hairy cell leukemia is remanded. The Veteran contends that his hairy cell leukemia is related to his military service. For the reasons that follow, the Board finds that additional development is necessary prior to adjudication. As a preliminary matter, the Board notes that while the Veteran has served many years with a state National Guard, in order for service connection to be granted, it must be shown that the Veteran's leukemia was incurred in or aggravated by his active duty service or during a period of active duty for training (ACDUTRA). The Veteran primarily contends that his leukemia is related to exposure to jet fuel while working as a petroleum supply specialist. The evidence of record shows that the Veteran became a petroleum supply specialist in September 2010 after completing training for such during a period of ACDUTRA from August 2010 to September 2010. While the Veteran was diagnosed with hairy cell leukemia in November 2010, a January 2011 private treatment record indicates that the Veteran may have started to experience symptoms in November 2009, prior to his period of ACDUTRA. Veteran status must be established as a condition of eligibility for service-connection. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, an appellant must first establish veteran status"). To establish veteran status based on a period of ACDUTRA, a claimant's disability must relate to a disease or injury that was incurred or aggravated during the period of ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000). Generally, unless and until veteran status is established for any period of ACDUTRA, the presumptions of soundness and presumptions of service connection accorded to certain diseases under the statute and pertinent regulations do not apply. See 38 U.S.C. §§ 1111, 1153; Bowers, 26 Vet. App. at 206-07. However, the presumption of soundness can apply to a veteran who has achieved "veteran" status through a prior period of active duty and who claims a disability that was incurred during a later period of ACDUTRA, but only where the veteran was examined contemporaneous to entering the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Here, while the Veteran did serve a prior period of active duty with the U.S. Marine Corps, the evidence of record does not show that the Veteran was examined prior to his period of ACDUTRA in August 2010. Thus, the presumption of soundness does not apply to this period of ACDUTRA. As the evidence of record indicates that his leukemia may have preexisted his August 2010 period of ACDUTRA, the Board finds that an opinion should be obtained on remand that addresses whether the claimed condition preexisted this period of ACDUTRA, and if so, whether it was aggravated during this period or any subsequent period of ACDUTRA by his exposure to jet fuel. Furthermore, the Veteran also has contended that his leukemia may be related to exposure to radiation from helicopters. Specifically, at the March 2021 Board hearing, the Veteran contended that when he joined the California Army National Guard he initially was going to be an avionics technician, and while stationed at Mather Guard Base, he was exposed to radiation from a helicopter floor system that turned on inside of a hanger. However, the Veteran's military personnel records from his period of service with the California Army National Guard are not of record, and thus, it is unclear whether the Veteran was serving on a period of ACDUTRA at this time. Accordingly, on remand, the military personnel records for the Veteran's period of service with the California Army National Guard also should be obtained. Moreover, there may be outstanding, relevant private treatment records. At the March 2021 hearing, the Veteran reported that he receives treatment from Dr. N. at Kaiser Permanente. However, no records from this provider are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. The matters are REMANDED for the following action: 1. Take appropriate action to obtain the service personnel records from the Veteran's period of service with the California Army National Guard from January 2006 to January 2012, and to verify all of his actual periods of ACDUTRA during this time. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. N. at Kaiser Permanente. Make two requests for the authorized records from aforementioned provider, unless it is clear after the first request that a second request would be futile. 3. Obtain a VA medical opinion regarding the etiology of the Veteran's hairy cell leukemia from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner is asked to opine: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hairy cell leukemia existed prior to his period of ACDUTRA from August 2010 to September 2010 and, if so, b) Whether the hairy cell leukemia was at least as likely as not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of his August 2010 period of ACDUTRA or any subsequent period of ACDUTRA. In so opining, the examiner should consider and address the reported exposure to jet fuel containing benzene. c) If the Veteran's leukemia did not preexist his period of ACDUTRA in August 2010, whether it is at least as likely as not that his leukemia had its onset in, or is otherwise related to, his August 2010 period of ACDUTRA, including exposure to jet fuel containing benzene. d) Regardless of whether the Veteran's leukemia preexisted his period of ACDUTRA in 2010, whether it is at least as likely as not (a 50 percent or greater probability) that his leukemia is related to his claimed exposure to radiation from a helicopter floor system. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.