Citation Nr: 0930914	
Decision Date: 08/18/09    Archive Date: 08/27/09

DOCKET NO.  04-07 313A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for myelodysplastic 
syndrome, including as a result of exposure to herbicides 
(Agent Orange).

2.  Entitlement to an initial disability rating in excess of 
10 percent for peripheral neuropathy in the right upper 
extremity.

3.  Entitlement to an initial disability rating in excess of 
10 percent for peripheral neuropathy in the left upper 
extremity.


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Ann L. Kreske, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1962 to October 
1966.
 
This appeal comes to the Board of Veterans' Appeals (Board) 
from two rating decisions by the Department of Veterans 
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida: 
an April 2006 rating decision, which, inter alia, denied 
service connection for myelodysplastic syndrome; and a 
January 2009 rating decision, which granted service 
connection for peripheral neuropathy in the right and left 
upper extremities and assigned a 10 percent disability rating 
for each upper extremity, effective February 5, 2003.  

In response to the January 2009 rating decision granting 
service connection for peripheral neuropathy in the right and 
left upper extremities, the Veteran filed a notice of 
disagreement (NOD) in March 2009.  See 38 C.F.R. § 20.300 
(2008).    Thus, the issuance of a statement of the case 
(SOC) is required for these two issues.  See Manlincon v. 
West, 12 Vet. App. 238 (1999).

In September 2006, the Veteran testified before the 
undersigned Veterans Law Judge at a videoconference hearing 
regarding the issues of peripheral neuropathy in the left and 
right upper extremities.  

The issues of peripheral neuropathy in the right and left 
upper extremities are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the 
Vietnam era; therefore, he is presumed to have been exposed 
to Agent Orange or other herbicides while there.

2.  The Veteran has a current diagnosis of myelodysplastic 
syndrome.

3.  Although the Veteran has been diagnosed with 
myelodysplastic syndrome, this disease is not on the list of 
diseases presumptively associated with herbicide exposure.  

4.  There is no evidence of myelodysplastic syndrome in 
service or for many years thereafter.

5.  There is probative medical evidence that the Veteran's 
myelodysplastic syndrome is due to his presumed exposure to 
Agent Orange or other herbicides in Vietnam.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, the Veteran's 
myelodysplastic syndrome was incurred in service.  38 
U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313 
(2008).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

Review of the claims folder reveals compliance with the 
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 
5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).  The duty to notify was accomplished by way of  
VCAA letters from the RO to the Veteran dated in October 
2005, January 2007, and January 2008.  These letters 
effectively satisfied the notification requirements of the 
VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) by (1) informing the Veteran about the information 
and evidence not of record that was necessary to substantiate 
his claim, (2) informing the Veteran about the information 
and evidence the VA would seek to provide, and (3) informing 
the Veteran about the information and evidence he was 
expected to provide.  See also Pelegrini v. Principi, 18 Vet. 
App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 
16 Vet. App. 183, 187 (2002).  

The Board notes that for claims pending before VA on or after 
May 30, 2008, 38 C.F.R. § 3.159 was recently amended to 
eliminate the fourth element requirement that VA request that 
a claimant submit any evidence in his or her possession that 
might pertain to the claim.  See 73 Fed. Reg. 23,353 (Apr. 
30, 2008).  Consequently, the presence or absence of notice 
of this element in this case is of no consequence because it 
is no longer required by law.

Furthermore, letters from the RO dated in January 2007 and 
January 2008 further advised the Veteran that a disability 
rating and an effective date will be assigned if service 
connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 
473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 
F.3d 1311 (2007).  Thus, he has received all required notice 
in this case, such that there is no error in content. 

However, the Board acknowledges the RO did not provide VCAA 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded until after the rating decision on appeal; thus, 
there is a timing error as to the additional VCAA notice.  
Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. 
Hartman v. Nicholson, 483 F.3d 1311 (2007).  In Pelegrini II, 
the U.S. Court of Appeals for Veterans Claims (Court) held, 
in part, that a VCAA notice, as required by 38 U.S.C.A. 
§ 5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim for VA benefits.  Here, additional VCAA notice was 
provided in January 2007 and January 2008, after issuance of 
the initial unfavorable AOJ decision in April 2006.  However, 
both the United States Court of Appeals for the Federal 
Circuit (Federal Circuit Court) and the Court have since 
further clarified that the VA can provide additional 
necessary notice subsequent to the initial AOJ adjudication, 
with a subsequent readjudication of the claim, so that the 
essential fairness of the adjudication, as a whole, is 
unaffected because the appellant is still provided a 
meaningful opportunity to participate effectively in the 
adjudication of the claim.  See Mayfield v. Nicholson, 499 
F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that 
a statement of the case (SOC) or supplemental SOC (SSOC) can 
constitute a "readjudication decision" that complies with 
all applicable due process and notification requirements if 
adequate VCAA notice is provided prior to the SOC or SSOC).  
As a matter of law, the provision of adequate VCAA notice 
prior to a readjudication "cures" any timing problem 
associated with inadequate notice or the lack of notice prior 
to an initial adjudication.  See also Prickett v. Nicholson, 
20 Vet. App. 370, 376 (2006).

In this case, after initially providing VCAA notice in 
October 2005, January 2007, and January 2008, followed by 
subsequent VCAA and Dingess notice in January 2007 and 
January 2008, the RO readjudicated the claim in an SOC dated 
in January 2009.  Thus, the timing defect in the notice has 
been rectified.

With respect to the duty to assist, the RO has obtained the 
Veteran's service treatment records (STRs), service personnel 
records (SPRs), VA treatment records, and private treatment 
records as identified and authorized by the Veteran.  The 
Veteran also has submitted additional private treatment 
records.  Further, he and his representative have submitted 
documents, such as scientific journal articles and other 
Board decisions concerning the same issue, and numerous 
statements, including from private treating physicians, in 
support of his claim.  Thus, there is no indication that any 
additional evidence remains outstanding, and the duty to 
assist has been met.  38 U.S.C.A. § 5103A.

Finally, a remand by the Board confers on the claimant, as a 
matter of law, the right to compliance with the remand 
orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In 
this regard, the Board is satisfied as to compliance with the 
instructions from its December 2006 remand.  Specifically, 
the RO was instructed to provide the Veteran with VCAA notice 
as required under Dingess, supra; to provide the Veteran with 
a VA neurological examination; and to issue an SOC with 
regard to the issue of myelodysplastic syndrome.  The Board 
finds that the RO has complied with these instructions and 
that the November 2008 VA examination report substantially 
complies with the Board's December 2006 remand instructions.  
Stegall v. West, 11 Vet. App. 268 (1998).  

Analysis

Service connection may be granted if it is shown that the 
Veteran suffers from a disability resulting from an injury 
suffered or disease contracted in line of duty, or for 
aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in active military service.  38 
U.S.C.A. §§  1110, 1131; 38 C.F.R. § 3.303.  Service 
connection may be demonstrated either by showing direct 
service incurrence or aggravation, or by using applicable 
presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 
1043 (Fed. Cir. 1994).

Service connection requires competent evidence showing (1) 
the existence of a present disability; (2) in-service 
incurrence or aggravation of a disease or injury; and (3) a 
causal relationship between the present disability and the 
disease or injury incurred or aggravated during service.  
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), 
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see 
also Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. 
Brown, 7 Vet. App. 498 (1995).

A disorder also may be service connected if the evidence of 
record reveals that the Veteran currently has a disorder that 
was chronic in service or, if not chronic, that was seen in 
service with continuity of symptomatology demonstrated 
thereafter.  
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-
97 (1997).  A demonstration of continuity of symptomatology 
is an alternative method of demonstrating the second and/or 
third Caluza elements discussed above.  Savage, 10 Vet. App. 
at 495-496.  

Disorders diagnosed after discharge may still be service 
connected if all the evidence, including pertinent service 
records, establishes that the disorder was incurred in 
service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 
1039, 1043 (Fed. Cir. 1994).  

In the absence of proof of a current disability, there can be 
no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. 
Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) 
(indicating service connection presupposes a 
current diagnosis of the condition claimed).

Diseases associated with exposure to certain herbicide agents 
used in support of military operations in the Republic of 
Vietnam during the Vietnam era will be presumed to have been 
incurred in service. 38 U.S.C.A. § 1116(a)(1); 
38 C.F.R. § 3.307(a)(6).  The presumption requires exposure 
to an herbicide agent and manifestation of the disease to a 
degree of 10 percent or more within the time period specified 
for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  Furthermore, 
even if a Veteran does not have a disease listed at 38 C.F.R. 
§ 3.309(e), he or she is presumed to have been exposed to 
herbicides if he or she served in Vietnam between January 9, 
1962, and May 7, 1975, unless there is affirmative evidence 
to establish that the Veteran was not exposed to any such 
agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. 
§ 3.307(a)(6)(iii).  

The following diseases are associated with herbicide exposure 
for purposes of the presumption:  chloracne or other acneform 
disease consistent with chloracne, Type II diabetes, 
Hodgkin's disease, chronic lymphocytic leukemia, multiple 
myeloma, non-Hodgkin's lymphoma, acute and subacute 
peripheral neuropathy, porphyria cutanea tarda, prostate 
cancer, respiratory cancers (cancer of the lung, bronchus, 
larynx, or trachea), and certain soft-tissue sarcomas.  38 
U.S.C.A. § 1116(a)(2); 
38 C.F.R. § 3.309(e).

A layperson is generally not capable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. 
App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 
1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  
Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status generally do not constitute competent medical 
evidence.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  

However, lay evidence can be competent and sufficient to 
establish a diagnosis of a condition when (1) a layperson is 
competent to identify the medical condition (e.g., a broken 
leg), (2) the layperson is reporting a contemporaneous 
medical diagnosis, or (3) 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).

In essence, lay testimony is competent when it regards the 
readily observable features or symptoms of injury or illness 
and "may provide sufficient support for a claim of service 
connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); 
see also 38 C.F.R. § 3.159(a)(2).  

In this regard, the Court emphasized that when a condition 
may be diagnosed by its unique and readily identifiable 
features, the presence of the disorder is not a determination 
"medical in nature" and is capable of lay observation.  In 
such cases, the Board is within its province to weigh that 
testimony and to make a credibility determination as to 
whether that evidence supports a finding of service 
incurrence and continuity of symptomatology sufficient to 
establish service connection.  Barr v. Nicholson, 21 Vet. 
App. 303, 310 (2007). 

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination, 
the benefit of the doubt is afforded the claimant.  38 
U.S.C.A. § 5107(b).

In this case, the Veteran contends he has myelodysplastic 
syndrome from exposure to herbicides, specifically Agent 
Orange, during his military service, and, in particular, 
while stationed in Vietnam.  See the Veteran's claim dated in 
August 2005, NOD dated in May 2006, and VA Form 9 dated in 
March 2009. 

As already mentioned, the first requirement for any service-
connection claim is the existence of a current disability.  
Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  
Concerning this, VA and private treatment records reveal that 
the Veteran was diagnosed with myelodysplastic syndrome in 
July 2005 and has received treatment for the disorder since 
then.  See, e.g., private treatment records from Dr. N.A., 
dated in July 2005, and VA treatment records dated from 
February to April 2006.  Therefore, the evidence clearly 
shows current myelodysplastic syndrome.  Consequently, the 
determinative issue is whether this disorder is somehow 
attributable to the Veteran's military service, including his 
presumed exposure to Agent Orange or other herbicide while in 
Vietnam.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) 
("A determination of service connection requires a finding of 
the existence of a current disability and a determination of 
a relationship between that disability and an injury or 
disease incurred in service.").  See, too, Maggitt v. West, 
202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 
F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. 
App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 
1308 (Fed. Cir. 1998).

With respect to presumptive service connection due to Agent 
Orange exposure, although the Veteran's SPRs indicate that he 
served in the Republic of Vietnam during his period of 
service, myelodysplastic syndrome is not on the list of 
diseases associated with herbicide exposure for purposes of 
the presumption.  
38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  Thus, the 
automatic presumption of service connection afforded for 
certain specific diseases associated with exposure to 
herbicides, specifically Agent Orange, is not for application 
in this case.  This does not, however, preclude the Veteran 
from establishing his entitlement to service connection for 
the claimed condition with proof of actual direct causation.  
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Concerning direct service connection, if the claimed disease 
is not one of the presumptive diseases listed in 38 C.F.R. 
§ 3.309(e), but exposure to an herbicide is presumed or 
proven by the evidence, as is the case here, the Veteran may 
establish service connection for the disease by (1) showing 
that the disease actually occurred in service; or (2) by 
submitting medical evidence of a nexus between the disease 
and his exposure to herbicides during military service.  
Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  
In fact, the Court has specifically held that the provisions 
set forth in Combee are applicable in cases involving 
Agent Orange exposure.  McCartt v. West, 12 Vet. App. 164, 
167 (1999).  

In this regard, the Veteran's STRs are negative for any 
complaint, treatment, or diagnosis of, myelodysplastic 
syndrome during service, including due to Agent Orange 
exposure.  However, because the Veteran served in the 
Republic of Vietnam from October 1965 to September 1966, he 
is presumed to have been exposed to herbicides.  38 U.S.C.A. 
§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  Therefore, the 
Board finds that the Veteran suffered an in-service injury of 
presumed exposure to herbicides.

Post-service, private treatment records associated with the 
claims file indicate that the Veteran had received treatment 
for, and had a history of, microcytic anemia since June 2001.  
In September 2001, due to symptoms he exhibited, his private 
treating physician at the time suspected early 
myelodysplastic syndrome.  See private treatment records from 
Dr. A.G., dated from June 2001 to September 2001.  
The Veteran was subsequently diagnosed with myelodysplastic 
syndrome in July 2005.  See private treatment records from 
Dr. N.A., dated in July 2005.  

The final consideration in a service connection claim is the 
existence of a medical nexus.  In this regard, the Veteran 
has submitted medical opinions from his private treating 
physicians indicating a link between his myelodysplastic 
syndrome and his presumed exposure to herbicides during 
service.  Specifically, a treatment record from Dr. N.A., 
dated in November 2005, indicated that it is likely the 
Veteran's myelodysplastic syndrome could be related to his 
in-service exposure to Agent Orange, which could have caused 
bone marrow injury and the subsequent development of 
myelodysplasia.  See private treatment record from Dr. N.A., 
dated in November 2005.  Another medical opinion by Dr. T.A., 
dated in April 2006, indicated that, in patients such as the 
Veteran, who developed early onset myelodysplastic syndrome, 
the disease is generally due to prior exposure to mutagenic 
agents such as contained in herbicides used during the 
Vietnam War.  The physician also noted that there is a 
growing body of data that such mutagenic agents act via a 
final common pathway in exerting their mutagenic effects, one 
of which is a correlation between such agents and the 
development of myelodysplastic syndrome.  The physician 
concluded that, when the Veteran's medical condition and 
history are viewed in totality, it is unlikely that anything 
other than exposure to such mutagenic agents during his 
service in the Republic of Vietnam caused his myelodysplastic 
syndrome.  See medical opinion from Dr. T.A., dated in April 
2006.  Since there are no contrary medical nexus opinions of 
record, the Board finds these opinions submitted by the 
Veteran's treating physicians to be of great probative weight 
and provide evidence in favor of the claim.  
   
Summarily, for the reasons and bases stated above, the Board 
concludes that the evidence supports a finding that there 
exists a medical nexus between the Veteran's myelodysplastic 
syndrome and his presumed exposure to herbicides.  Therefore, 
service connection is warranted for myelodysplastic syndrome 
due to presumed exposure to herbicides during service.  38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The appeal is 
granted; however, the precise nature and extent of this 
disorder is not at issue before the Board at this time.


ORDER

Service connection for myelodysplastic syndrome, including as 
a result of exposure to herbicides (Agent Orange), is 
granted.



REMAND

Before addressing the merits of the claim for higher initial 
ratings for peripheral neuropathy in the right and left upper 
extremities, the Board finds that additional development of 
the evidence is required.

As noted above, in a January 2009 rating decision, the RO 
granted service connection for peripheral neuropathy in the 
right and left upper extremities with a 10 percent disability 
rating for each upper extremity, effective February 5, 2003.  
In March 2009, the Veteran filed a notice of disagreement 
(NOD) in response to the January 2009 rating decision, with 
evidence indicating the severity of his peripheral neuropathy 
in the upper extremities.  He also argues that this disorder 
has caused him to lose time from work in the past 12 months.  
See NOD dated in March 2009.  

However, the RO has not provided an SOC addressing these two 
issues, regarding which the Veteran has filed a timely NOD, 
and, as such, requires the issuance of an SOC.  Manlincon, 12 
Vet. App. at 240-41.  An SSOC will not be sufficient to 
properly address this matter.  See 67 Fed. Reg. 3099, 3104 
(January 23, 2002) (amending 38 C.F.R. § 19.31 in January 
2002 to provide that a SSOC will not be used to announce the 
decision of an AOJ on an issue not previously addressed in a 
SOC).

Accordingly, the case is REMANDED for the following action:

1.  The RO should issue the Veteran and 
his representative an SOC as to the issues 
of entitlement to initial disability 
ratings in excess of 10 percent for 
peripheral neuropathy in the right and 
left upper extremities.  The Veteran 
should be apprised of his right to submit 
a substantive appeal and to have his claim 
reviewed by the Board.  The RO should 
allow the Veteran and his representative 
the requisite period of time for a 
response. 

2.  Thereafter, if a timely substantive 
appeal is received, the case should be 
returned to the Board for further 
appellate consideration.  The purpose of 
this remand is to comply with due process 
of law.  The Board intimates no opinion as 
to the ultimate disposition warranted in 
this case.   

The appellant has the right to submit additional evidence and 
argument on the matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by 
the Court for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).




______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals








 Department of Veterans Affairs