Citation Nr: 21045508 Decision Date: 07/26/21 Archive Date: 07/26/21 DOCKET NO. 20-25 525A NDATE: July 26, 2021 ORDER New and material evidence having been received, the claim for service connection for chronic lymphocytic leukemia (CLL) is reopened, and service connection for CLL is granted. New and material evidence having been received, the claim for service connection for acquired psychiatric disorder, to include major depressive disorder (MDD), anxiety, and panic disorder, is reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for ventilator dependent myositis is remanded. Entitlement to service connection for small lymphocytic lymphoma (SLL) is remanded. Entitlement to service connection for skin cancer, claimed as basal cell carcinoma and squamous cell carcinoma, is remanded. Entitlement to service connection for an acquired psychiatric disorder to include MDD, anxiety, and panic disorder is remanded. FINDINGS OF FACT 1. A December 2010 rating decision denied service connection for CLL; the Veteran did not timely perfect an appeal. 2. Evidence received since the December 2010 rating decision with respect to the claim of entitlement to service connection for CLL is new and material. 3. A October 1998 rating decision denied service connection for MDD and panic disorder; the Veteran did not timely perfect an appeal. 4. Evidence received since the October 1998 rating decision with respect to the claim of entitlement to service connection for MDD and panic disorder is new and material. 5. CLL is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The December 2010 rating decision, in which the Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for CLL, is final. 38 U.S.C. § 7104(b). 2. Evidence received since the December 2010 rating decision to reopen the claim of entitlement to service connection for CLL is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The October 1998 rating decision, in which the VARO denied service connection for MDD and panic disorder, is final. 38 U.S.C. § 7104(b). 4. Evidence received since the October 1998 rating decision to reopen the claim of entitlement to service connection for MDD and panic disorder is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 5. The criteria for service connection for CLL are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1988 to October 1992, with service in the Southwest Asia theater of operations from January 1991 through May 1991. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for CLL In October 1998, the RO initially denied service connection for CLL. The Veteran did not timely appeal the rating decision; therefore, the October 1998 rating decision is final. Most recently, in December 2010, the RO denied service connection for CLL. The Veteran did not timely appeal the rating decision; therefore, the December 2010 rating decision is final. The basis for the RO's denial was that there was no evidence that CLL was incurred in or caused by service. Since the most recent prior final decision, medical evidence has been added to the record. In November 2017, February 2018, and May 2021, positive etiology opinions were received which associates the Veteran's currently diagnosed CLL to his military service. The reason for the prior final denial was that there was no evidence establishing the Veteran's CLL was caused by service. In other words, the nexus element was missing. This recent evidence indicates that the Veteran's CLL is related to his active service. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the December 2010 rating decision. Therefore, the claim of entitlement to service connection for CLL is reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder In October 1998, the RO denied service connection for MDD and panic disorder. The Veteran did not timely appeal the rating decision; therefore, the October 1998 rating decision is final. The basis for the RO's denial was that there was no evidence that an acquired psychiatric disorder was incurred in or caused by service. As noted above, since the last prior final decision, medical evidence has been added to the record. In November 2017, February 2018, and May 2021, positive etiology opinions were received which associates the Veteran's currently diagnosed CLL to his military service. Further, multiple private treatment records note that the Veteran's depression, anxiety, and sleeping difficulties are secondary to his CLL diagnosis. The reason for the prior final denial was that there was no evidence establishing the Veteran's acquired psychiatric disorder was caused by service. In other words, the nexus element was missing. This recent evidence suggests that the Veteran's depression, anxiety, and sleeping difficulty are related to his CLL, which is related to active service. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the October 1998 rating decision. Therefore, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened and remanded. 3. Service connection for CLL The Veteran maintains that his current CLL is related to his active service. Specifically, the Veteran provides that his CLL is linked to in-service exposure to hazardous chemicals, including smoke from oil field fires in Kuwait. See May 2020 statement, May 2021 Board hearing testimony. For the following reasons, the Board finds that service connection is warranted. Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. See 38 C.F.R. § 3.303 (a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). The first and second elements for service connection, namely a current disability and an in-service incurrence, have been met. 38 C.F.R. § 3.303 (a); see Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. The Veteran's private treatment records demonstrate a current diagnosis of chronic lymphocytic leukemia. In May 2021, the Veteran's treating physician confirmed a current diagnosis of CLL. In terms of an in-service injury or incurrence, the Veteran relates exposure to chemicals as described above. The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, in July 2019 and June 2020, the Veteran submitted photographs that show clouds of black smoke, which he identified as oil fires. During his May 2021 Board hearing, he stated that he took these pictures. The Veteran also submitted an August 2018 letter from Col. G.F., the Battalion Commander of the 2nd Battalion, 34th Armor (2-34 Armor) (assigned to the 1st Brigade, 1st Infantry Division (Mechanized) which was deployed to Saudi Arabia arriving on New Year's Eve 1990. Col. F. noted that the Veteran was his 4.2" Heavy Mortar Platoon Leader. He described the movement of the unit in January and February 1991 noting that the unit attacked as part of the 1st Infantry Division and drove north through Iraq and then east across the northern edge of Kuwait. Col. F. reported further that the unit entered dense oil smoke on the 27th of February and remained in thick black smoke from the oil fires until March 8th when the unit returned to Iraq where they remained on the edge of the oil fires until mid-April. The 2-34 Armor was one of the units identified in the downwind hazard of the chemical munitions explosion in an Iraqi ammunition depot as well. (see also December 2000 and September 2005 letters from the Department of Defense regarding the proximity of the Veteran's unit in March 1991 to a low level of chemical agents resulting from the demolition of munitions at Khamisiyah, Iraq with no reported indication of any long-term health affects but continued monitoring). Based on the foregoing, the Board finds the Veteran's account of in-service chemical exposure to be competent. See also 38 U.S.C. § 1154(a). Additionally, the Veteran is credible in his report of in-service chemical exposure. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Since filing a claim for service connection for CLL, the Veteran has been consistent in reporting his claimed in-service chemical exposure. Further, the Veteran's Certificate of Release or Discharge from Active Duty, DD Form 214, states that the Veteran is in receipt of the Southwest Asia Service Medal, Kuwait Liberation Medal, and the Bronze Star Medal. Concerning the causal relationship or "medical nexus" between the Veteran's current CLL and his active service, his claims folder contains a positive May 2021 medical opinion completed by his treating private physician. The medical opinion states that it is more likely than not that the Veteran's CLL is related to his military service. In support, the medical opinion provides that the Veteran was diagnosed in 1997 at age 30 with CLL. The Veteran's history is notable for the fact that he was stationed in the Persian Gulf during Desert Storm in 1991 and that the Veteran reported exposure to oil well fires. The examiner noted that crude petroleum potentially contains numerous substances, including volatile organic compounds, inorganic oxides, and metals. The principal compounds of crude oil combustion that have the potential for toxicity in humans include oxides of nitrogen and sulfur, nitric and sulfuric acids, volatile organic compounds, and polycyclic aromatic hydrocarbons. Also, there have been reports suggesting increased incidence of CLL in rubber and petroleum industries which implicates a possible role for solvents and other chemicals. The examiner concluded that given the Veteran's young age at diagnosis and aggressive clinical course with a temporal relation to exposure to substances which have been implicated in the pathogenesis of CLL, it is more likely than not that there is a causal relationship between the two. The Board notes that the Veteran's claims folder contains an additional February 2018 positive medical opinion from the same treating private physician, as well as a separate November 2017 positive private medical opinion. See November 2017 letter from W.H., M.D., Mayo Clinic (noting that the Veteran was exposed to multiple agents during service including oil well fires which he assumed would result in exposure to carcinogens such as butadiene, carbon tetrachloride and chlorinated hydrocarbons, all agents that have been linked to CLL; and concluding that given the Veteran's young age at diagnosis, the association of these agents with the development of CLL, and his known exposures, it appeared likely that such exposures played a role in the development of the Veteran's CLL). The Board finds that the May 2021 private treating physician medical opinion carries significant probative weight, as it is based upon a review of the Veteran's diagnostic testing, longstanding treatment of him, and it details the history of his active service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). And although there is no "treating physician rule" requiring the Board to give additional evidentiary weight to the opinion of a physician or other healthcare provider that has treated the Veteran, such a clinician does have an intimate knowledge of the severity of his condition over a span of time and his reported medical history. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Accordingly, the Veteran has a current diagnosis of chronic lymphocytic leukemia, which has been linked by medical evidence to his active service by the May 2021 medical opinion completed by his treating physician. Moreover, the Veteran's claims folder does not contain an adequate medical opinion to the contrary. Thus, the Board finds that the Veteran's CLL is at least as likely as not attributable to his active service. And, under VA law, in such a circumstance, the claimant must prevail. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection is warranted for chronic lymphocytic leukemia. REASONS FOR REMAND 4. Entitlement to service connection for sinusitis, ventilator dependent myositis, small lymphocytic lymphoma (SLL), skin cancer, and an acquired psychiatric disorder is remanded The Veteran claims that his sinusitis, ventilator dependent myositis, SLL, skin cancer, and acquired psychiatric disorder are secondary to his CLL, which has been service-connected above. The Veteran does not contend, and the record does not reflect, that the Veteran's sinusitis, ventilator dependent myositis, SLL, skin cancer, and acquired psychiatric disorder had their onset in service, or that the disabilities are otherwise directly related to the Veteran's military service. Private treatment records note diagnoses of SLL, sinusitis, myositis, basal cell carcinoma, squamous cell carcinoma, as well as depression. Therefore, the Agency of Original Jurisdiction (AOJ) should ensure that adequate VA medical opinions are of record that address the Veteran's claims of secondary service connection. The matters are REMANDED for the following action: 1. Obtain appropriate VA medical opinions that adequately address the Veteran's claim of secondary service connection for sinusitis, ventilator dependent myositis, SLL, skin cancer, and an acquired psychiatric disorder. The record must be made available to the examiner and the examiner should indicate in his/her report whether the record was reviewed. Based on a review of the record and any examination findings, the examiner(s) should address the following: As to the Veteran's sinusitis, ventilator dependent myositis, SLL, skin cancer, and acquired psychiatric disorder (to include MDD), indicate whether it is at least as likely as not that the condition is proximately due to, or aggravated beyond the natural progression of the disorder, by the Veteran's CLL. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general; or there is additional evidence that would allow for an opinion on this matter. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.