Citation Nr: 21041438 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-35 787 DATE: July 9, 2021 ORDER Entitlement to service connection for chronic myelogenous leukemia (CML) is granted. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT Resolving doubt in favor of the Veteran, the evidence is at least in equipoise that his CML is a result of active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for CML have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1975 to September 1978, February 1980 to February 1984, and from July 1984 to December 1996. Entitlement to service connection for CML. The Veteran appeals the denial of service connection for CML. He asserts that his CML is related to toxic exposure to chemicals, asbestos, and radiation during service. See July 2006 VA 21-4138 Statement In Support of Claim. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110 ;38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie,886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Turning to the evidence, the Veteran submitted a private opinion from Dr. E.R.B. in February 2016. His physician stated that he is familiar with the Veteran's medical records and history. He opined that "it is at least as likely as not that [the Veteran's] condition is a direct result of his exposure to benzene and other toxic chemicals during his military service." He reasoned that medical literature supports his conclusion between a correlation to benzene exposure and fuels and different types of cancers, including leukemia. Additionally, Dr. E.R.B. asserted that the Veteran "has no other known risk factors that may have precipitated his current condition." The Veteran was afforded a VA examination in August 2016. The examiner opined that the Veteran's CML is less likely than not caused by the exposure to asbestos. The examiner reasoned that CML "is not a disease known to be associated with asbestos exposure." However, no further rationale was provided. In September 2016, the Veteran submitted several medical articles and correspondences finding an association with benzene exposure, kerosene-based jet fuel exposure, and leukemia. The Veteran was afforded a VA examination in October 2016, where it was opined that the Veteran's CML is less likely than not caused by benzene exposure. The examiner reasoned the following: "[e]xposure to benzene is generally accepted as a cause of acute myeloid leukemia (AML), but the association with other cell types of leukemia and other lymphatic and hematopoietic cancers is controversial." The examiner added that, "[r]eviewing the data cited in Dr. [E.R.B.'s] letter, additional research in this area needs to be completed in order to prove a direct link." The Veteran was afforded an addendum VA opinion in November 2016, where it that opined it was less likely than not the Veteran's CML is caused by toxic chemicals, to include benzene, JP-5M, and DFM. The examiner reasoned that benzene has been associated with acute, but not chronic myelogenous leukemia. The examiner cited a 2009 paper, indicating that CML does not appear to be related to benzene exposure. In August 2018, the Veteran submitted a lay statement from a fellow shipmate, V.J.M., where he attested that during service, they were routinely exposed to hazardous chemicals. He details his assignments during service and asserts that they were exposed to hazardous chemicals and noise level for many years that "have taken a toll on my health as well as his." In March 2021, the Veteran submitted two medical opinions, establishing a nexus with benzene exposure during service and his CML. In a January 2021 opinion from Dr. A.B., the physician stated that the Veteran has been diagnosed with CML since 2000. The Veteran has sought treatment in Dr. A.B.'s medical center and the Veteran has been his patient since August 2020. He stated that he has extensively reviewed the Veteran's medical history and opines that "his diagnosis of CML is at least as likely as not to have been caused by his exposure to multiple benzene-containing compounds that he encountered during his military service." His physician reasoned that there are no other additional risk factors from development of CML. Additionally, the examiner cites to "extensive literature" supporting an association with benzene and "the development of myeloid neoplasms, such as CML." In a March 2021 private opinion from Dr. S.R.B., the physician stated that he reviewed the Veteran's service treatment record, VA medical records, decision report, and medical opinion. He provided an extensive discussion of CML and JP-5 benzene solvents and medical literatures supporting a link with benzene exposure and CML. Dr. S.R.B opined that the Veteran's CML is at least as likely as not secondary to his exposure to jet fuels. He discussed the VA opinions providing a negative nexus and stated that while there may be conflicting evidence on the findings of CML and benzene, "conflicting data is not enough information to deny this Veteran's claim." Upon review of the medical evidence, the Board finds that the evidence for and against the claims is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. In light of the credible testimony provided by the Veteran, and in conjunction with the private medical opinions establishing a nexus between the Veteran's service and his CML, the Board finds in favor of the claim for service connection. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). REASONS FOR REMAND Entitlement to service connection for tinnitus is remanded. The Veteran appeals the denial of service connection for tinnitus. The Veteran was afforded a VA examination in July 2016. The examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner reasoned the following: Vet's audiograms from 1980-1995 show normal hearing sensitivity without much fluctuation. He did not report an event that occurred during his last year in the military that could have caused his hearing loss or trigger the ringing. The Board notes that normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, tinnitus is typically audible only to the patient (see VA Diagnostic Code 6260) and would not be determined in an audiological examination. Lastly, the Veteran's medical records indicate that he has a history of noise exposure. See e.g., March 2015 VA Treatment Record. Yet, the examiner did not consider his MOS in rendering an opinion. Therefore, the July 2016 examination is inadequate for adjudicative purposes and the Veteran should be afforded another examination for his tinnitus claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical examiner to determine the nature and etiology of his tinnitus. The claims file must be made available to and be reviewed by the examiner. The examiner should provide opinion as to whether it is at least as likely as not (50 percent or greater possibility) that tinnitus began in service, was caused by service, or is otherwise etiologically related to active duty service. The examiner should express an opinion as to whether there is any medical reason to accept or reject the Veteran's belief that his tinnitus is related to his in-service noise exposure, as his MOS was a machinist mate. In doing so, the examiner should consider the Veteran's February and March 2015 VA records, reporting a history of noise exposure, as well as lay statements from the Veteran, and a lay statement from V.J.M. in August 2018, describing their noise level exposure during service. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.