Citation Nr: 21028790 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-15 481 DATE: May 12, 2021 ORDER The application to reopen the claim for service connection for acute myeloid leukemia (AML) is granted. REMANDED Entitlement to service connection for AML is remanded. FINDINGS OF FACT 1. In an unappealed March 2018 rating decision, the RO denied service connection for AML. 2. The evidence received since the March 2018 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for AML. CONCLUSIONS OF LAW 1. The March 2018 rating decision denying service connection for AML is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2020). 2. Since the March 2018 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for AML; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As will be discussed below, the RO denied the Veteran's claim of service connection for AML in a March 2018 rating decision. Thereafter, in October 2018, the Veteran submitted a statement requesting "reconsideration" of the March 2018 rating decision. In the December 2018 rating decision, the RO informed the Veteran that his claim was "reconsidered." As will be discussed below, the Board finds that new and material evidence has been submitted to reopen the previously denied claim. AML In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2020). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2018). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for ALML in an unappealed March 2018 rating decision because there was no evidence of a relationship between the Veteran's service and his AML. The March 2018 rating decision is final. At the time of the prior final rating decision in March 2018, the record in pertinent part included the Veteran's service treatment records as well as the Veteran's statements indicating that his exposure to benzene and herbicides during service caused his AML. The Veteran's service treatment records were absent complaints of or treatment for AML or symptoms associated therewith. As the March 2018 rating decision is final, new and material evidence is therefore required to reopen the claim. In reviewing the evidence added to the claims folder since the March 2018 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim. Specifically, in February 2020, a VA examiner opined that it is at least as likely as not that the Veteran's AML is related to service, in particular exposure to benzene and Agent Orange. As indicated above, the Veteran's previous claim was denied because there was no evidence of a relationship between AML and service. As the new evidence now suggests such a relationship, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for AML is reopened. REASONS FOR REMAND Service connection for AML The Veteran contends that he has AML that is related to service, in particular as due to exposure to benzene and herbicides. The Board observes that the Veteran's service treatment records are absent complaints of or findings related to AML or symptoms associated therewith. However, the Board notes that the Veteran is competent to attest to exposure to benzene. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran as a lay person is competent to report exposure to benzene. Moreover, his military occupational specialty (MOS) was an aviation supply man and the Veteran has reported that his duties involved exposure to benzene. The Board also notes that the Veteran's service personnel records document service in Vietnam and exposure to herbicides is presumed. However, AML is not a disease for which service connection is warranted as due to herbicides on a presumptive basis pursuant to 38 C.F.R. § 3.309(e). Also, the Veteran is currently treated for AML. The Board notes that multiple nexus opinions concerning the etiology of the Veteran's AML are of record. In particular, the Veteran submitted a private opinion dated June 2018 from Dr. K.K. who opined that the Veteran's AML is at least as likely as not caused by or a result of his exposure to benzene during service. However, Dr. K.K. also noted that he was reluctant to provide an opinion as to the etiology of the Veteran's AML as he was not an oncologist or hematologist and therefore, he did not possess adequate knowledge to render an opinion. In this regard, a VA examiner concluded in a November 2018 report after examination of the Veteran and consideration of the Veteran's medical history that it is less likely than not that the Veteran's AML was caused by or a result of service to include exposure to benzene. The Board notes that the VA examiner was listed as a general practice physician and there is no indication that he had any experience in the field of oncology or hematology. The Board also notes that another VA examiner concluded in a February 2020 report after review of the Veteran's medical history that it is at least as likely as not that the Veteran's AML was caused or a result of service to include exposure to benzene. The VA examiner was listed as a physician's assistant and there is no indication that they have expertise in the field of oncology or hematology. There is no other medical opinion of record as to the etiology of the Veteran's AML. In light of the ambiguities discussed above, the Board finds that a medical opinion should be obtained on remand from a hematologist or oncologist concerning the etiology of the Veteran's AML. The matter is REMANDED for the following action: 1. Forward the Veteran's claims folder to an oncologist or hematologist or other medical professional with the appropriate level of expertise to obtain an opinion as to the etiology of the Veteran's AML. The claims folder must be made available to the examiner. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then provide the Veteran with an examination. Based on the review of the Veteran's claims folder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's AML was incurred in or aggravated by active service, to include exposure to benzene and/or herbicides during service in Vietnam. A rationale should be provided for all opinions provided. 2. Review the claims file to ensure that all of the foregoing requested development is completed and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.