LEUKEMIA

K. MILLIKAN · 2023 · Case ID: 23052486

DENIED

Summary

The Veteran, an Army Veteran who served from July 1967 to April 1968 and June 1969 to September 1970, appeals the denial of service connection for chronic lymphocytic leukemia (CLL). The Veteran claims his leukemia is due to herbicide exposure, including Agent Orange, asserting he traveled on transports used for herbicide agents and saw/used the chemicals as part of special forces. The Board found that new evidence, specifically the Veteran's March 2019 testimony, was material and reopened the previously denied claim. However, the Board denied service connection for CLL due to alleged herbicide exposure. The Veteran's service records did not indicate service in Vietnam, the Korean DMZ, Thailand, Laos, Cambodia, Guam, American Samoa, or Johnston Atoll, nor did they show service on C-123 aircraft or other aircraft used for spraying herbicides. The Board found no evidence of actual herbicide exposure or use by the Veteran. Furthermore, the Veteran's service treatment records did not show complaints, treatment, or diagnosis of leukemia during service, nor did the separation examination reveal any significant defects. The earliest diagnosis of leukemia was in January 2013, approximately 38 years after service. The Board concluded the evidence persuasively weighs against a finding of service connection, as the condition did not have its onset in service and is not otherwise related to active duty. The Veteran's lay testimony regarding herbicide exposure was not sufficient to establish a nexus, as it is a medically complex issue requiring expert opinion.

Rationale

New and material evidence received since the last final denial met the criteria to reopen the claim.; Evidence persuasively weighs against finding that the Veteran's CLL began during service or is otherwise related to an in-service injury, event, or disease.; Veteran's lay testimony regarding herbicide exposure was not sufficient to establish a nexus for CLL, as it is a medically complex issue requiring expert opinion.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-51 980

Full Decision Text

Citation Nr: 23052486
Decision Date: 09/22/23 Archive Date: 09/22/23

DOCKET NO. 18-51 980
DATE: September 22, 2023

ORDER

The request to reopen the claim of entitlement to service connection for chronic lymphocytic leukemia is granted.

Service connection for chronic lymphocytic leukemia to include as due to alleged exposure to herbicide agents is denied.

FINDINGS OF FACT

1. Evidence received since the final August 2015 rating decision that denied service connection for leukemia is not previously of record; and, the new evidence, is material as it triggers VA's duty to assist.

2. Although the Veteran served during the Vietnam era, the evidence shows he did not serve in the Republic of Vietnam, he did not serve within 12 nautical miles in the offshore waters of the Republic of Vietnam, the conditions of service did not involve duty or visitation in the Republic of Vietnam, he did not serve in or near the Korean Demilitarized Zone (DMZ); serve in Thailand at any US or Royal Thai base, Laos, certain provinces in Cambodia; Guam, America Samoa or their territorial waters, or the Johnston Atoll or a ship that called there from, and he did not perform service in the Air Force or Air Force Reserve under circumstance where he regularly operated, maintained, or served on board C-123 aircraft.

3. The Veteran has not demonstrated that he was actually exposed to herbicide agents as a result of his active service.

4. The evidence of record does not demonstrate that the Veteran's chronic lymphocytic leukemia began during service, manifested to a compensable degree within one year of discharge from service, or is otherwise related to disease or injury in active service.

CONCLUSIONS OF LAW

1. As new and material evidence has been received, the criteria to reopen the previously denied service connection claim for chronic lymphocytic leukemia are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156.

2. The criteria for service connection for chronic lymphocytic leukemia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army with active duty for training (ACDUTRA) from July 1967 to April 1968 and in the United States Army with active duty from June 1969 to September 1970.

This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 Regional Office (RO) rating decision. In March 2019, the Veteran testified at a Board hearing. A transcript of the testimony is associated with the claims file.

In August 2019, the Board remanded the case to the RO for further development and adjudicative action.

1. Whether new and material evidence has been received to reopen the previously denied service connection claim for leukemia.

The Veteran contends that his leukemia is caused by or related to exposure to herbicide agents to include Agent Orange. Specifically, he asserts that while he was in special forces, he frequently traveled on transports that were previously used to transport herbicide agents to include Agent Orange. He also asserted that he saw and used the chemical as part of being in special forces.

The Board concludes new evidence associated with the claims file since the final July 2016 rating decision continuing the denial of service connection for leukemia relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. §§ 7103, 7105; 38 C.F.R. §§ 3.156, 3.303.

The Veteran originally filed a service connection claim for leukemia in May 2015. The RO denied the Veteran's service connection claim for leukemia in an August 2015 rating decision on the basis that his service treatment records do not contain complaints, treatment, or diagnosis for this condition. The evidence of record at the time of that denial consisted of service treatment records from June 1969 to September 1970 and VA treatment records from January 2013 to June 2015.

Although notified of the denial in October 2015 at his then current address of record, the Veteran did not initiate an appeal within one year of receiving notice of the rating decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. § 3.156(b), (c).
contain complaints, treatment, or diagnosis for this condition. The evidence of record at the time of that denial consisted of service treatment records from June 1969 to September 1970 and VA treatment records from January 2013 to June 2015.

Although notified of the denial in October 2015 at his then current address of record, the Veteran did not initiate an appeal within one year of receiving notice of the rating decision. Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). Accordingly, the October 2015 rating decision is final. See 38 C.F.R. § 20.1103.

Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309.

Generally, a claimant has one year from the date of notice of an Agency of Original Jurisdiction (AOJ) rating decision to submit an NOD and appeal that rating decision to the Board. With few exceptions, an unappealed rating decision becomes final. See, e.g., 38 C.F.R. § 3.156(b), (c).

A finally decided service connection claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38?C.F.R. §?3.156(a). VA regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact,

new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material.

The provisions of 38?U.S.C. §?5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9?Vet. App.?273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3?Vet. App.?510, 512-13 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24?Vet. App.?110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Id. at 118, 124 (Lance, J. concurring).

In January
?Vet. App.?510, 512-13 (1992).

In January 2017, the Veteran filed a request to reopen his service connection claim for leukemia. Additional evidence of record received since the final January 2012 rating decision includes service personnel records, VA treatment records, lay statements from the Veteran, and March 2019 Hearing Transcript.

The Veteran's testimony in the March 2019 Hearing Transcript is new in that they were not of record at the time of the August 2015 rating decision. The Veteran testified at the March 2019 Board hearing that while he was in special forces, he frequently traveled on transports that were previously used to transport herbicide agents to include Agent Orange. He also stated that he saw and used such chemicals as part of being in the Special Forces. As noted above, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus, 3?Vet. App.at 512-13. As the Veteran's lay testimony triggered VA's duty to

assist to obtain the Veteran's outstanding service personnel records to determine his duty stations, as well as see if there was evidence of actual herbicide exposure, the March 2019 Hearing Transcript is material. Accordingly, both new and material evidence was received after the August 2015 rating decision and therefore, the requirements for reopening the previously denied service connection claim for a leukemia are met. See 38 C.F.R. § 3.156(a).

2. Entitlement to service connection for leukemia to include as due to alleged exposure to herbicide agents.

The Board concludes that while the Veteran has a current diagnosis of chronic lymphocytic leukemia, the evidence persuasively weighs against finding that the Veteran's chronic lymphocytic leukemia began during service or is otherwise related to an in-service injury, event, or disease to include the alleged exposure to herbicide agents. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki,?581 F.3d 1313?(Fed.Cir.2009).

With respect to the Veteran's assertion that his chronic lymphocytic leukemia is due to?herbicide?agent exposure to include Agent Orange, generally, the Veteran must show the following in order to establish a presumption of service connection

for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam, including its territorial waters within 12 nautical miles from shore, during the period beginning on January 9, 1962 and ending on May 7, 1975, served between September 1, 1967, and August 31, 1971, in or near the Korean Demilitarized Zone (DMZ); or served in Thailand at any US or Royal Thai base; Laos, certain provinces in Cambodia; Guam, or America Samoa or their territorial waters; or the Johnston Atoll or a ship that called there from January 9, 1962, to June 30, 1976; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in
7, 1975, served between September 1, 1967, and August 31, 1971, in or near the Korean Demilitarized Zone (DMZ); or served in Thailand at any US or Royal Thai base; Laos, certain provinces in Cambodia; Guam, or America Samoa or their territorial waters; or the Johnston Atoll or a ship that called there from January 9, 1962, to June 30, 1976; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6), 3.309(e). Chronic lymphocytic leukemia is listed under the diseases that are presumed due to in-service herbicide exposure. 38?C.F.R. §?3.309(e).

During the pendency of this appeal, the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) created new statutory requirements for the adjudication of certain claims based on veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam (RVN) during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. "Service in the Republic of Vietnam" now includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The BWN Act defines "offshore" as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude in a table provided. See 38 U.S.C. § 1116A(d).

Additionally, enacted during the appeal, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) provides that Veterans who served in Thailand at any US or Royal Thai base; Laos, certain provinces in Cambodia; Guam, or America Samoa or their territorial

waters; or the Johnston Atoll or a ship that called there from January 9, 1962, to June 30, 1976 are also presumed to have been exposed to herbicide agents.

Turning to the evidence of record, the Veteran's service personnel records show that the Veteran served as a radio telephone operator and he served in Mayville, North Dakota and Grafton, North Dakota from November 1968. In August 1969 through September 1970 the Veteran was a radio operator assigned to Company A 144th Battalion and served in Europe. A July 1969 travel order shows that he traveled from Fort Leonard Wood, Missouri to Germany. An August 1969 Special Orders extract shows that the Veteran was stationed in Heidelberg, Germany. The Veteran does not contend, and the evidence does not otherwise show that he served in the Republic of Vietnam or the offshore waters of the Republic of Vietnam, in or near the Korean Demilitarized Zone, in Thailand, Laos, certain provinces in Cambodia; Guam, or America Samoa or their territorial waters; or the Johnston Atoll or a ship that called there from. Thus, herbicide exposure may not be presumed based on the location of where the Veteran served during active duty service.

Regarding the Veteran's assertion that he was exposed to herbicide agents to include Agent Orange from traveling on transports that were previously used to transport herbicide agents to include Agent Orange, VA regulation provides that "an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent." 38 C.F.R. § 3.307(a)(6)(v). The Veteran did not serve in the United States Air Force or Air Force Reserve. There is also no evidence that the Veteran was transported on C-123 aircraft or that the any aircraft that transported the Veteran was used to spray herbicide agents, to include Agent Orange. By definition any aircraft the
, VA regulation provides that "an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent." 38 C.F.R. § 3.307(a)(6)(v). The Veteran did not serve in the United States Air Force or Air Force Reserve. There is also no evidence that the Veteran was transported on C-123 aircraft or that the any aircraft that transported the Veteran was used to spray herbicide agents, to include Agent Orange. By definition any aircraft the Veteran was on was not directly involved in the transport and distribution of herbicide agents like the C-123 aircraft noted in 38 C.F.R. § 3.307, and there is no evidence that the activities

described by the Veteran involved aircraft harboring dangerous levels of herbicide agents, or that the Veteran regularly and repeatedly served onboard aircraft which may have been used to spray Agent Orange or other toxic herbicide agents. The evidence also does not support that the Veteran used herbicide agents to include Agent Orange as part of his duties during active service. Thus, the Veteran is not entitled to the presumption of in-service herbicide exposure under 38 C.F.R. § 3.307(a)(6)(v); and the evidence persuasively weighs against finding that the Veteran was exposed on a facts found basis to herbicide agents to include Agent Orange during active military service.

Notwithstanding the above, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides but must also determine whether his disability is otherwise the result of active naval service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude establishing, in the alternative, service connection by way of proof of actual direct causation.

The Veteran's service treatment records reveal that the Veteran did not receive treatment for or a diagnosis of chronic lymphocytic leukemia during active military service. The Veteran's separation examination dated in August 1970 does not show a diagnosis of chronic lymphocytic leukemia. The clinical evaluation of the Veteran was documented as normal, and the clinician noted that there were no significant defects of diagnoses noted.

VA treatment records show that the Veteran possibly had leukemia in January 2013, because the Veteran had a very high white blood count. The Veteran was diagnosed with chronic lymphocytic leukemia based on a January 2013 bone marrow biopsy. Thus, the Veteran was diagnosed with chronic lymphocytic leukemia approximately 38 years after discharge from active duty service. The

first medical evidence of a diagnosis of coronary artery disease and myocardial infarction was in August 2014, approximately 43 years after discharge from active duty service. Such lapse in time between separation from service and the earliest documentation of current disability is a factor that weighs against the service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

The medical records do not show chronic lymphocytic leukemia during service or that the Veteran incurred chronic lymphocytic leukemia to a compensable degree within the first post-service year. Thus, service connection for a chronic disease under 38 U.S.C. § 3.309(a) may not be presumed.

The Veteran was not provided with a medical opinion regarding whether his chronic lymphocytic leukemia is related to an injury, disease, or event during active naval service. In this case, there is no medical or lay evidence of symptoms of chronic lymphocytic leukemia during active military service or that the Veteran was exposed to herbicide agents to include Agent Orange during active military service. Accordingly, the low threshold under McLendon has not been met and VA's duty to provide a VA medical opinion has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

There is no medical evidence of record that indicates the Veteran's current chronic lymphocytic leukemia is related to an injury, event, or disease that occurred during the Veteran's active duty service. While the Veteran believes his chronic
lymphocytic leukemia during active military service or that the Veteran was exposed to herbicide agents to include Agent Orange during active military service. Accordingly, the low threshold under McLendon has not been met and VA's duty to provide a VA medical opinion has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

There is no medical evidence of record that indicates the Veteran's current chronic lymphocytic leukemia is related to an injury, event, or disease that occurred during the Veteran's active duty service. While the Veteran believes his chronic lymphocytic leukemia is related to alleged exposure to herbicide agents to include Agent Orange, he is not competent to provide a diagnosis of chronic lymphocytic leukemia or a nexus opinion in this case. This issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of chronic lymphocytic leukemia cannot be competently addressed by the Veteran as a lay person based on personal observation, such as, visual observation or by any other senses. Therefore, it is outside the competence of the Veteran because

the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Furthermore, the evidence persuasively weighs against finding that the Veteran was exposed to herbicide agents to include Agent Orange during his active military service.

In conclusion, the evidence persuasively weighs against finding the Veteran was exposed to herbicide agents to include Agent Orange during active service and his chronic lymphocytic leukemia did not have its onset in, and is not otherwise related to, active service. Accordingly, service connection for chronic lymphocytic leukemia is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

K. MILLIKAN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Berry, 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.

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