Citation Nr: 22012297 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-27 252A DATE: March 3, 2022 ORDER New and material evidence has been received and the request to reopen a claim for entitlement to service connection for chronic myelogenous leukemia (CML) is granted. Entitlement to service connection for CML is granted. FINDINGS OF FACT 1. The Veteran did not appeal the July 1994 rating decision that denied service connection for CML; this rating decision became final. 2. Additional evidence received since the final July 1994 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for CML. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's CML was incurred due to in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The July 1994 rating decision denying the Veteran's claim of entitlement to service connection for CML is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for CML. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for CML have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to March 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. The hearing transcript is of record. 1. New and material evidence The Veteran's claim of entitlement to service connection for CML was denied in a July 1994 rating decision on the basis that CML is not included in the list of diseases associated with exposure to certain herbicide agents. The Veteran did not appeal the July 1994 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b). Accordingly, the July 1994 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim to reopen in December 2010, following notice from VA that a special review of the claim was undertaken as a result of the addition of B-call leukemias to the list of diseases presumptively associated with herbicide agent exposure. See October 2010 notification letter. The RO denied the claim in a September 2011 rating decision on the basis that CML is not considered a B-cell type leukemia. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for CML. New evidence received since the last final denial in July 1994 includes updated VA treatment records, to include a November 2010 VA examination, as well as an April 2015 private medical opinion submitted by the Veteran, that the Board finds provides sufficient basis to reopen. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for CML is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for CML The Veteran contends that he was misdiagnosed with CML and that his actual diagnosis is chronic lymphocytic leukemia (CLL), which is presumptively related to in-service herbicide agent exposure, or alternatively, that his CML is etiologically related to in-service herbicide agent exposure. See August 2021 Board hearing. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including all chronic B-cell leukemias including but not limited to CLL, may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(d), 3.309(e). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Here, the record shows that the Veteran served in Vietnam from June 7, 1968, to June 6, 1969. See also rating decisions dated September 2011 and May 2021. Exposure to herbicide agents is therefore presumed. The Veteran's medical records reflect that he was diagnosed with CML in 1984. See VA examinations dated March 1989 and December 2010 (noting that the Veteran's leukemia is in remission); see also private medical records received by VA in February 1989. CML is not listed among the conditions presumed to be service connected in veterans that have been exposed to certain herbicidal agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). However, service connection may be established on a direct basis due to in-service exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As the first and second elements for establishing service connection, a current disability and in-service event, have been met, the question becomes whether the Veteran's condition is related to service. In April 2015, the Veteran submitted a private medical opinion from Dr. B.O. noting that the diagnosis of CML requiring a bone marrow transplant in 1985 was based on a reading of a bone marrow biopsy by a VA pathologist based on the visual information available at the time, as biologic markers had not yet been developed. The Veteran suffered a leukemia relapse in 1995, which was designated a lymphoid blast crisis. This was based on a review of biological markers for leukemia, which is more specific than a visual biopsy reading. The markers indicated "predominately lymphoid cells" and some "mixed lymphoid/myeloid cells." Due to the prior history of CML, this was labeled as a blast reaction of the condition. However, lymphoid cells are characteristic of CLL; a lymphoid blast crisis is more characteristic as a complication of CLL, and often the terminal event. Thus, the accuracy of the diagnosis of CML is questionable; the diagnosis may have been CLL had biologic markers been available at the time. Further, the presence of both prostate cancer and leukemia in the same patient is highly suggestive of conditions resulting from herbicide agent exposure. Thus, his leukemia is more likely than not caused by herbicide agent exposure. In June 2015, a VA medical opinion was obtained to reconcile the conflicting medical evidence of record. The examiner stated that it is clear from multiple bone marrow biopsies and treatment evidence that the veteran has CML. The case was reviewed with the VA oncologist who concurs with this opinion. In 1993, 1995, 1996, 1997, bone marrow biopsies at two VA medical centers documented the condition to be consistent with CML. CML is presently stable, status post bone marrow transplant, at this time. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds that the June 2015 medical opinion is inadequate to render a decision on the claim. It does not address the favorable evidence of record, specifically, the April 2015 private medical opinion and its explanation that there was possibly a misdiagnosis due to technological developments since the initial diagnosis in the 1980s. Moreover, it does not opine on direct service connection at all regardless of the fact that CML is not included on the presumptive diseases list. The Board notes that while the April 2015 private medical opinion is speculative as to whether the diagnosis is CML or CLL, it is definitive regarding its conclusion that the Veteran's leukemia is more likely than not due to in-service herbicide agent exposure. Thus, the Board finds the April 2014 private medical opinion is adequate and highly probative as to the nexus element. It is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, as there is an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is applicable and service connection for CML is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.