Citation Nr: 21030012 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-28 684A DATE: May 17, 2021 ORDER Entitlement to service connection for a blood disorder manifested by a low white blood cell count and low platelet count, to include as due to herbicide agent exposure is denied. FINDING OF FACT The Veteran's blood disorder was not incurred in, and is not otherwise related to, his active duty service, to include his exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a blood disorder have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, the RO issued a rating decision that denied the Veteran's claim for entitlement to service connection for a low white blood cell count. The Veteran filed a timely appeal of that denial. In August 2013, the RO issued a rating decision that denied the Veteran's separate claim seeking entitlement to service connection for thrombocytopenia (low platelet count). The Veteran did not file a timely appeal regarding that denial. Nevertheless, during the appeal period, the Veteran was diagnosed as having thrombocytopenia and various laboratory findings indicated that he had a low white blood cell count. Moreover, it appears that the Veteran referred to these blood disorders interchangeably throughout the appeal period. Accordingly, the Board has recharacterized the Veteran's claim as entitlement to service connection for a blood disorder manifested by a low white blood cell count and low platelet count, to include as due to in-service herbicide exposure. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the claim on appeal in September 2017, March 2019, and October 2020 for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the October 2020 remand noted that there may be outstanding, relevant private treatment records. By letters dated October and November 2020, the RO requested the Veteran to complete the necessary authorizations, i.e. VA Form 21-4142 and VA Form 21-4142a, in order for VA to attempt to obtain the outstanding records. Completed authorizations never were submitted. As the RO sent two requests for the authorizations, the Board finds the October 2020 remand directives have been substantially completed. As noted in the October 2020 remand, service connection for hypertension has been granted; thus, the issue in controversy for this matter has been resolved. The Board also notes that the Veteran has not requested to appear at another hearing subsequent to the Board's 2020 remand. The Veteran's representative has submitted an Appellant's Post-Remand Brief for review. In January 2021, the Veteran submitted additional evidence after the supplemental statement of the case in January 2021. Waiver of RO consideration of the additional evidence is presumed given the date of the Veteran's substantive appeal. See 38 U.S.C. § 7105(e). Additionally, in April 2021, the Veteran raised the issue of entitlement to service connection for hypothyroidism. A claim for hypothyroidism was most recently denied in a June 2014 rating decision. Should the Veteran wish to file a claim for such, he is free to file a supplemental claim and identify new and relevant evidence. Entitlement to service connection for a blood disorder manifested by a low white blood cell count and low platelet count, to include as due to herbicide agent exposure The Veteran contends that his current blood disorder is related to his presumed herbicide agent exposure. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include idiopathic/immune thrombocytopenia purpura (ITP), manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). ITP is not included in such enumerated diseases. At this time, it is noted that since ITP is not listed as an enumerated disease, service connection on a presumptive basis resulting from herbicide agents cannot be established. Nonetheless, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed.Cir.1994). Turning to the evidence of record, the Veteran has a current diagnosis of ITP. See December 2019 VA examination; private treatment records. Accordingly, the first element of service connection, a current disability, is established. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to a blood disorder. All body systems were noted as normal on his May 1973 Report of Medical Examination at separation. The Veteran contends that his blood disorder is related to exposure to herbicide agents. In light of the Veteran's service in the Republic of Vietnam, exposure to herbicide agents is conceded. See DD Form 214. Thus, the second element of service connection, an in-service event, also has been established. Turning to the third element of service connection, a causal nexus, the Board finds that this element is not established. In an April 2007 private treatment record, Dr. R.G., indicated that the possible etiologies of ITP include medications, viral infections to include AIDS, malignancy, myelodysplasia, and autoimmune diseases including lupus. In an April 2017 private treatment record, Dr. J.S., opined that while it is a possibility that the Veteran's exposure to herbicide agents could be the cause of the Veteran's ITP, he could not confirm such based on the paucity of data. The Board finds the use of "a possibility" and "could be" to be speculative and thus, the opinion is afforded no probative weight. Obert v. Brown, 5 Vet. App. 30, 33 (1993). In an October 2017 private treatment record, Dr. J.A. noted that the Veteran's ITP is related to immune-mediated consumption. VA opinions initially were obtained in November 2017 and December 2019. However, the Board previously found those opinions inadequate. See March 2019 and October 2020 Board remand. Thus, they are afforded no probative weight. Pursuant to the October 2020 remand, additional etiology opinions were obtained in October 2020 and December 2020. The October 2020 VA examiner opined that it was less likely than not that the Veteran's blood disorder is related to his active duty service, to include his exposure to herbicide agents. The examiner noted that the most comprehensive assessment of sequelae of disease processes affecting U.S. veterans of the Vietnam War is the National Academies of Sciences, Engineering, and Medicine Veterans and Agent Orange: Update 11. The examiner noted that the update does not mention ITP specifically. However, he explained that as described by the Veteran's hematologists, ITP is an autoimmune condition where the bone marrow produces normal platelets, but the immune system destroys the platelets faster than normal. He further explained that the update does discuss autoimmune conditions but does not find adequate evidence to support a relationship between herbicide agents and autoimmune diseases. The Veteran underwent a VA fee-based examination in December 2020 at which time another etiology opinion was provided. The examiner also opined that the Veteran's blood disorder was less likely than not related to his active duty service, to include exposure to herbicide agents. The examiner explained that the condition is common in the general population and noted that the condition is not a presumptive disease caused by herbicide agents. The examiner also cited to and provided excerpts from medical literature that discuss what ITP is and the various causes of ITP. None of the literature cited indicates that herbicide agents as a cause for ITP. The Board finds the October 2020 and December 2020 opinions, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, are highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his blood disorder is related to his exposure to herbicide agents, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges the Veteran's contention that the effects of herbicide agents do not happen overnight and that the fact that his blood disorder was not reported within the time limits is not realistic. See August 2016 substantive appeal. However, ITP is not a condition presumptively related to herbicide agent exposure, and therefore there is no specific time limit that it must have manifested within for service connection to be granted. Moreover, the most competent and probative evidence of record indicates that the Veteran's ITP is not related to his exposure to herbicide agents. The Board also acknowledges the Veteran's contention that VA cannot say 100 percent that his blood disorder was not caused by herbicide agent exposure. See January 2021 correspondence. However, the standard utilized by VA in determining whether a nexus exists is "at least as likely as not" (i.e. a probability of 50 percent or more). Thus, as long as the competent evidence of record indicates that it is less likely than not (i.e. less than a 50 percent probability) that the Veteran's blood disorder is related to his exposure to herbicide agents, the standard of proof required to deny service connection is met. The Board has considered whether service connection for ITP is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a). However, the Veteran does not contend, and the evidence does not show, that he suffered from ITP symptoms in and since service, or that his ITP manifested to a compensable degree within a year of separation. Therefore, ITP is not presumed to have been incurred in service. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Based on the foregoing, service connection for a blood disorder manifested by a low white blood cell count and low platelet count is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The appeal is denied. 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.