Citation Nr: 22014166 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-35 866 DATE: March 11, 2022 ORDER Entitlement to service connection for Chronic Myelomonocytic Leukemia (CMML) due to Agent Orange exposure, is granted. FINDING OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and is therefore presumed to have been exposed to herbicides to include Agent Orange. 2. The evidence is at least in relative equipoise as to whether the Veteran's CMML, was related to his active-duty service, to include as due to Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for CMML, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1965 to January 1969, to include service in the Republic of Vietnam. In February 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to service connection for CMML due to Agent Orange exposure, is granted. The Veteran contends that he developed CMML as a result of his active-duty service. Specifically, he alleges that he was exposed to Agent Orange during his time in Vietnam and that such exposure to herbicides caused his CMML. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain diseases may be service connected on a presumptive basis, as due to exposure to herbicides/Agent Orange, if manifested in a Veteran who served in Vietnam during the Vietnam Era (or a Veteran who is otherwise shown to have been exposed to herbicides in service). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis for or related to Leukemia. However, the Veteran's personnel records reflect that he served in the Republic of Vietnam. In addition, the Veteran's DD 214, notes that not only did the Veteran serve during the Vietnam Era, but he worked as a munition's maintenance specialist. Therefore, the Board finds that the Veteran does have the requisite service in Vietnam to recognize presumptive exposure to herbicide agents. Post-service, the Veteran was diagnosed with and treated for CMML. See post-service private treatment records, April 2018 VA examination and June and July 2018 private medical opinions. In April 2018 the Veteran underwent a VA Hematologic and Lymphatic Conditions including Leukemia examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that the Veteran had been diagnosed with CMML in September 2017. The examiner found that while the Veteran had served in the Republic of Vietnam, the type of Leukemia that the Veteran has is not on the list of presumptive/conceded conditions secondary to Agent Orange exposure. However, the Board finds that this examiner failed to provide an adequate opinion, as he did not discuss whether the Veteran's CMML could be directly caused by his exposure to Agent Orange. See Combee, 34 F.3d at 1042. In June 2018 the Veteran submitted a statement from one of his private physicians, Dr. E.M.R. She stated that the Veteran had developed two blood diseases: chronic idiopathic thrombocytopenia and CMML. Dr. E.M.R. noted that the Veteran had no family history of Leukemia but that he had spent approximately one year in Vietnam while on active duty. She stated that CMML was very rare and as such there is not a lot of scientific data known about the disease. However, she opined that the Veteran's CMML was more likely than not due to or caused by his Agent Orange exposure. In July 2018 the Veteran submitted another statement from one of his private physicians, Dr. J.G. He stated that the Veteran had proliferative CMML and that he could not rule out that such was caused by chemical exposure. However, the Board finds that the terminology used by this examiner does not provide a sufficient basis for an award of service connection, as the examiner's opinion that he could not "rule out" chemical exposure as a cause, is too speculative in nature. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). Throughout the appeal, the Veteran submitted statements indicating his belief that his CMML was caused by his active-duty service. Furthermore, during the February 2022 Board hearing, the Veteran testified that he was routinely exposed to not only Agent Orange but various other toxins through spraying and ingestion during his time in Vietnam. At the outset, the Board finds the evidence clearly establishes that the Veteran suffers from CMML. In addition, the Veteran has competently and credibly described his service in the Republic of Vietnam, which has been verified through his personnel records, and exposure to herbicides and other possible toxins was in keeping with his active-duty responsibilities. Thus, what must be shown to establish the claim is that the Veteran's disability is medically related to the claimed exposure he endured during service. Whether such a relationship exists is a medical determination beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As for presumptive service connection, the preponderance of the evidence is against service connection for CMML on a presumptive basis. Most notably, such is not listed as a chronic disease under 38 C.F.R. § 3.309 (a). Furthermore, there is no evidence of such within one year after military service. As previously noted, there are no diagnoses or complaints of any symptoms associated with CMML or any other type of Leukemia or cancers or treatment for such during the Veteran's service or for several years after his discharge. The earliest evidence of decreased platelet count was in 2011 and an assessment of CMML was in 2017. It is acknowledged that the Veteran is competent to give evidence about observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, may be credible regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). Here, however, any statements as to CMML continuing immediately after service are not found to be persuasive considering the persuasive medical evidence of record to the contrary. For these reasons, continuity of symptomatology has not been established, either through the medical evidence or through the Veteran's statements. Stated differently, CMML, was not demonstrated during service, at separation, or within one year of separation. The findings of record are consistent with a diagnosis of CMML but inconsistent with any possible allegation of continuity of symptomatology. Furthermore, there is no competent evidence linking the remote onset of CMML to service. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted. Rather the Veteran contends that his CMML is the direct result of herbicide exposure during service. As previously noted, the Veteran's DD 214 and his personnel records reflect that he served during the Vietnam Era, specifically in the United States Air Force from August 1965 to January 1969. Furthermore, his DD 214 indicates that he worked as a munitions maintenance specialist at Phan Rang Air Force Base in the Republic of Vietnam. Therefore, the Board has found that the Veteran has the requisite service in Vietnam to recognize presumptive exposure to herbicide agents. However, as the Veteran has been found to have CMML, and as such is not a disease enumerated under 38 C.F.R. § 3.309 (e) as presumed to be due to herbicide exposure, consideration of service connection for such disability on a presumptive basis as due to exposure to herbicides under 38 U.S.C. § 1116, is not warranted. However, this is not fatal to the Veteran's claim; he may nonetheless substantiate this theory of entitlement by presenting affirmative evidence of an etiological relationship between the Veteran's condition and his active-duty service, to include exposure to herbicide exposure. Here, there are multiple medical opinions of record. However, the Board notes that the April 2018 VA examiner did not consider whether there was an etiological connection between the Veteran's disability and his exposure. Rather the VA examiner merely stated that CMML was not a presumptive disease. In contrast, the Veteran's private physicians in June and July 2018 found that there was a connection. While the Board has noted that the July 2018 private opinion is somewhat speculative, the June 2018 private examiner provided a well-reasoned and thorough rationale to support her conclusions. Therefore, the Board finds the June 2018 private positive opinion probative. In sum, the record contains a competent opinion indicating that the Veteran's CMML was caused by or is related to his active-duty service. As the medical opinion evidence on the question of nexus between the Veteran's CMML and his active-duty service is at least in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's CMML was caused by or related to his active-duty service. In conclusion, the evidence shows that the Veteran has a diagnosis of CMML and medical and lay evidence showing a link between the Veteran's disability and his active-duty service. Therefore, based on the analysis above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for CMML, is warranted. The Board notes that, in reaching this conclusion, the evidence is at least in equipoise and the benefit of the doubt doctrine has been applied where appropriate. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.