Citation Nr: 22019350 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-46 313 DATE: April 1, 2022 ORDER Entitlement to service connection for chronic lymphocytic leukemia (CLL) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's chronic lymphocytic leukemia (CLL) is attributable to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic lymphocytic leukemia (CLL) have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1998 to August 2001, October 2001 to May 2002, and from August 2004 to January 2006. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A February 2020 Board decision denied entitlement to service connection for chronic lymphocytic leukemia (CLL). The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand, which vacated the February 2020 Board decision that denied entitlement to service connection for CLL. Thereafter, an August 2021 Board decision remanded the case for further evidentiary development. Entitlement to service connection for chronic lymphocytic leukemia (CLL) The Veteran contends that his chronic lymphocytic leukemia (CLL) is due to his exposure to burn pits and particulate matter during his service in Iraq and Kuwait. The Board concludes, after resolving reasonable doubt in the Veteran's favor, that the Veteran's CLL is due to exposure to burn pits and particulate matter during his Gulf War service. Service connection is therefore warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). VA treatment records show a current diagnosis of chronic lymphocytic leukemia (CLL). Moreover, the Board notes that VA has conceded exposure to particulate matter from proximity to burn pits. See September 2018 SOC. Therefore, the remaining question before the Board is whether the Veteran's CLL is related to his exposure to particulate matter from proximity to burn pits in service. A July 2018 VA examination diagnosed chronic lymphocytic leukemia (CLL). The July 2018 examiner opined that the Veteran's CLL is less likely than not related to service because the "Veteran did not serve during Agent Orange era." However, the Veteran did not contend that his CLL is due to exposure to herbicide agents during the Agent Orange era. The Board notes that a medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board therefore affords it no probative weight. A September 2018 VA examiner opined that the Veteran's CLL is less likely than not related to service. The examiner stated that "VA fact sheets nor medical literature research supports the causation of CLL by Gulf war exposures." The examiner then explained the cause of CLL, stating, "CLL is the most common leukemia in adults. It's a type of cancer that starts in cells that become certain white blood cells in the bone marrow. The cancer cells start in the bone marrow but then go into the blood." To the extent that the examiner based their opinion on medical literature and explained the usual etiology of CLL, the Board finds that the examiner has provided some rationale of the opinion. As such, the opinion is accorded probative weight. A September 2021 VA examiner opined that the Veteran's CLL is less likely than not related to service. With regard to the Veteran's conceded exposure to particulate matter from burn pits, the examiner concluded that "at this time, with the little available medical records, it is not likely that his CLL is related to exposure to burn pits." The Board notes that this opinion is too speculative as the examiner noted there are not enough oncology notes in the Veteran's claim file to understand "the true status of his cancer and possible etiologies." The Board therefore finds the opinion to be inadequate and affords it no probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A December 2021 private opinion found that it is at least as likely as not that the Veteran's CLL resulted from environmental hazard exposures to burn pits and particulate matter. The examiners based their opinion on epidemiological literature on the association of CLL and exposure to burn pits and particulate matter. At the outset, the Board finds that the September 2018 VA opinion and the December 2021 private opinion are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, review of the Veteran's medical records and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). In a June 2021 Declaration, the Veteran described his exposure to burn pits and particulate matter while deployed in Kuwait and Iraq in 2005. He stated that for approximately 6 weeks, while stationed at Radio Relay Point near Kish, Iraq, he spent 8 hours per day stirring two 55-gallon drums that burned trash, with one containing human waste and the other containing everything else the base was throwing out, including, but not limited to, plastic bottles, punctured aerosol cans and broken electronics. The Veteran recounted several other locations while deployed in which he was near burn pits and inhaling polluted smoke. He said he was covered in ash and soot every day, as there was no way to avoid it. He reported symptoms including watery eyes, burning lungs and prolonged cough. He also reported developing "Kuwait crud," an upper respiratory tract infection requiring steroids and antibiotics, as well as an inhaler, which he continued to use for the next three years. The Board notes that the Veteran is competent to report certain lay-observable symptoms, such as watery eyes and prolonged cough, and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board therefore affords his statements significant probative weight. Upon consideration of the competent evidence as noted above, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's CLL was likely due to his exposure to burn pits in service. While the September 2018 VA opinion found that the Veteran's CLL is less likely than not related to his Gulf War exposures, the December 2021 private opinion found that it is at least as likely as not due to environmental hazard exposures in service. As noted above, both opinions have been found adequate and have been accorded probative weight. Moreover, the Veteran submitted credible lay statements detailing his exposure to burn pits and the debilitating symptoms resulting from this exposure. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's CLL was at least as likely as not caused by the Veteran's exposure to burn pits in service. Service connection is therefore warranted. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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.