Citation Nr: 0812788	
Decision Date: 04/17/08    Archive Date: 05/01/08

DOCKET NO.  03-11 902A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to service connection for myelodysplastic 
syndrome (MDS) [refractory anemia with excess of blasts, 
trisomy VIII] or acute myelogenous leukemia (AML), claimed to 
be as a result of dioxin or benzene exposure in service.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney 
at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. A. Booher, Counsel



INTRODUCTION

The veteran had active service from March 1969 to October 
1971.  He was born in 1950.

This case is before the Board of Veterans' Appeals (Board) on 
appeal from a May 2002 rating decision by the above 
Department of Veterans Affairs (VA) Regional Office (RO).  

In May 2005, the Board denied entitlement to the disability 
herein claimed.

The veteran took his appeal to the United States Court of 
Appeals for Veterans Claims (Court).  In December 2006, 
pursuant to a Joint Motion, the Court returned the case to 
the Board.

Since that time, the Board forwarded the case for a written 
opinion by a medical expert.  That opinion is now of record, 
and a copy has been provided to all interested parties.

In March 2008, documentation was received from the veteran's 
attorney of record as to a merging of law firms; that 
document is of record.



FINDING OF FACT

The competent and probative evidence is in relative equipoise 
as to whether the veteran developed myelodysplastic syndrome 
(MDS) or acute myelogenous leukemia (AML) as a result of 
exposure to herbicide agents in service.




CONCLUSION OF LAW

Giving the benefit of the doubt to the veteran, 
myelodysplastic syndrome (MDS) [refractory anemia with excess 
of blasts, trisomy VIII] or acute myelogenous leukemia (AML) 
was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 
1116, 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 
3.303, 3.304, 3.306, 3.307, 3.309 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 
38 C.F.R. § 3.159, 3.326(a) (2007).  In view of the grant 
herein, there is no need for further discussion of notice or 
development.

II.  Applicable Legal Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1110 (West 2002); 38 CFR. 
§ 3.303(a)(2007).

In order to prevail on the issue of service connection for 
any particular disability, there must be medical evidence of 
a current disability; medical evidence, or in certain 
circumstances, lay evidence of in-service occurrence or 
aggravation of a disease or injury; and medical evidence of a 
nexus between an in-service injury or disease and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

In addition, service connection for certain cancers may be 
established based upon a legal presumption by showing that 
the disability was manifested to a compensable degree within 
one year after the date of separation from service.  38 
U.S.C.A. §§ 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

The law further provides that, if a veteran was exposed to a 
herbicide agent during active service, presumptive service 
connection is warranted for the following disorders: 
chloracne or other acneform disease consistent with 
chloracne; Type II diabetes; Hodgkin's disease; 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, soft-tissue sarcoma (other than 
ostrosarcoma, chondrosarcoma, Kaposi's sarcoma, or 
mesothelioma).  Presumptive service connection for these 
disorders as a result of Agent Orange exposure is warranted 
if the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 
U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  The governing law 
provides that a "veteran who, during active military, naval, 
or air service, served in the Republic of Vietnam during the 
period beginning on January 9, 1962, and ending on May 7, 
1975, shall be presumed to have been exposed during such 
service to an herbicide agent . . . 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).

The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) has held that when a claimed disorder is 
not included in a recognized listing as a presumptive 
disorder, direct service connection may nevertheless be 
established by evidence demonstrating that the disease was in 
fact incurred during service.  See Combee v. Brown, 34 F.3d 
1039, 1042 (Fed. Cir. 1994).  

It is the policy of VA to administer the law under a broad 
interpretation, consistent with the facts in each case, with 
all reasonable doubt to be resolved in favor of the claimant. 
38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

The Board has an obligation to provide adequate reasons and 
bases supporting this decision, but there is no requirement 
that every item of evidence submitted by the appellant or 
obtained on his behalf be discussed in detail.  Pertinent 
evidence will be delineated herein, and all the evidence of 
record has been reviewed.  However, the Board's analysis 
below will focus specifically on what evidence is needed to 
substantiate the claim and what the evidence in the claims 
file shows, or fails to show, with respect to the claim.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and 
Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

III.  Factual Background and Analysis

The veteran's service medical records are negative for 
complaints, symptoms, findings, or diagnoses relating to 
myelodysplasia or any of the disabilities herein claimed.

The record contains post-service private and VA medical 
records.  These do not document any complaints, symptoms, 
findings, or diagnoses related to myelodysplasia for decades 
after the veteran's separation from service.  

A July 2001 report from a private physician indicated that 
the veteran had asked him whether exposure to Agent Orange 
could be related to his myelodysplasia with trisomy 8.  The 
physician stated that he informed the veteran that any 
chemical exposure in the past would certainly pose a risk, 
but to fully define the cause and effect relationship was 
very difficult for a disease such as myelodysplasia.

A January 2004 letter from another private physician 
indicated that the veteran had been diagnosed with 
myelodysplastic syndrome in 2001.  He noted that 
myelodysplasia is a hematologic disorder, but that the 
etiology was not certain, although multiple agents had been 
linked to the causation of myelodysplastic syndrome.  
Predominant of these was exposure to benzene, radiation, 
and/or chemotherapy.  He opined that, given the presence of 
benzene in Agent Orange, the veteran's myelodysplasia could 
certainly be a result of exposure to Agent Orange in Vietnam.  
In addition, exposure to benzene had been associated with 
chromosome VIII abnormalities, which were present in the 
veteran's case.

A February 2004 VA examination report and addendum are in the 
file.  The examiner concluded that it was not at least as 
likely as not that exposure to Agent Orange resulted in the 
veteran's myelodysplasia.  The report provided a diagnosis of 
myelodysplastic syndrome, in remission, status-post bone 
marrow transplant, but with the veteran still requiring some 
immunosuppressants and having had two hospitalizations due to 
complications from graft versus host disease from his 
transplant.  The examiner observed that research by the 
National Academy of Sciences and Institutes of Health had 
included a review of 6,000 herbicide studies.  The research 
did not establish a connection between Agent Orange exposure 
and either myelodysplastic syndrome or the acute myelogenous 
leukemia to which myelodysplastic syndrome tends to progress.  

The examiner further stated that the only type of leukemia 
which had been associated with Agent Orange exposure was 
chronic lymphatic leukemia, which was a different entity from 
myelodysplastic syndrome and the acute myelogenous leukemia 
which tended to result from myelodysplastic syndrome.  He 
noted the private opinions and opined that while significant 
benzene exposure was associated with myelodysplasia, and 
benzene might have been used in the production of Agent 
Orange, his research showed that benzene was not a component 
of Agent Orange.  The examiner also referred to the numerous 
articles submitted by the veteran concerning a relationship 
between myelodysplasia and exposure to benzene.  He noted 
that he would do additional research as to whether Agent 
Orange contained significant amount of benzene.  If it could 
be demonstrated that Agent Orange contained significant 
concentrations of benzene, then it would be more probable 
than not that the veteran's myelodysplastic syndrome was 
secondary to Agent Orange exposure.

In the addendum, the examiner stated that his research showed 
that benzene might have been used to make Agent Orange, or 
that Agent Orange might have contained crystals extracted 
from benzene, but Agent Orange did not contain benzene.  The 
conclusion was thus that the studies showing a connection 
between benzene exposure and myelodysplastic syndrome were 
not applicable, and did not support a connection between 
Agent Orange exposure and the development of myelodysplastic 
syndrome.

A statement is also of record from M.P.B., M.D., dated in 
March 2007, which details the veteran's medical history.  He 
concluded that it was clear that the veteran was exposed to 
benzene in the process of Agent Orange exposure and that 
benzene was the agent which significantly increased the risk 
for MDS.  He also noted that MDS is unusual in a person the 
age of the veteran, which supported his conclusion that the 
in-service exposure was responsible therefor.

In December 2007, the Board submitted the case to an 
independent medical expert for an opinion.  The Board's 
request was as follows:

The issue before the Board is 
entitlement to service 
connection for myelodysplastic 
syndrome (MDS) [refractory 
anemia with excess of blasts, 
trisomy VIII] or acute 
myelogenous leukemia (AML), 
claimed to be as a result of 
dioxin or benzene exposure in 
service.  The veteran also has 
a number of other secondary 
health problems, which appear 
to be at least in part due to 
treatment for his AML or MDS.  

The veteran had active service 
from March 1969 to October 
1971, including in the 
Republic of Vietnam.  By law, 
he is presumed to have been 
exposed to Agent Orange and/or 
other herbicide agents used as 
defoliants in Vietnam.  He 
argues that he was exposed to 
benzene as a result of his 
presumptive exposure to Agent 
Orange, i.e., either as 
integrally contained therein, 
including but not limited to 
being there as a result of the 
manufacturing process, or as 
utilized in the delivery or 
dispersal thereof.  He has 
submitted treatise and other 
documentation relating to the 
components of herbicides and 
the methods by which they were 
used.  The Board notes that, 
although the veteran was 
presumptively exposed to Agent 
Orange/herbicides, that 
presumption does not include 
exposure to benzene.  
Therefore, this case requires 
a determination as to whether 
benzene was present or 
involved in the Agent Orange 
program in Vietnam, and 
whether any resulting exposure 
was a causal factor in the 
veteran's present disability.

There is a VA examiner's 
opinion of record to the 
effect that if Agent Orange 
(to which the veteran is 
presumed to have been exposed) 
contained a significant 
concentration of benzene, then 
it would be more probable than 
not that his MDS is due to 
that exposure.  Other medical 
data in the file reflects that 
there may be such a 
relationship.  An earlier 
Board decision denied the 
claim on the basis that the 
evidence was not sufficiently 
definitive to create a 
reasonable doubt as to service 
connection of the claimed 
disability.  

The veteran appealed the 
unfavorable Board decision to 
the U.S. Court of Appeals for 
Veterans Claims, which 
remanded the case for a more 
definitive evidentiary 
analysis.  Since then, the 
veteran has also submitted a 
detailed statement and opinion 
from a hematology/oncology 
specialist, M.P.B., M.D., who 
has treated for him for 
several years.

Please have a VA hematologist 
review the case and address 
the relationship between the 
veteran's current disabilities 
and his claimed chemical 
exposure in service.  
Specifically, responses should 
be given to the following: (a) 
what is the veteran's current 
diagnosis; (b) to what is his 
current diagnosis 
attributable, and when was it 
first demonstrated; and (c) 
what was the impact of his 
presumed exposure to herbicide 
chemicals in service on his 
present disability?  

In that regard, a 
comprehensive discussion 
should also be provided, 
utilizing VA research and 
resources (e.g., the VHA 
Environmental Agents Service), 
with regard to (d) what is the 
known, presumed, or potential 
content of benzene in 
herbicides sprayed in Vietnam, 
whether as (i) part of the 
materials production, (ii) 
inherent chemical content, 
and/or in (iii) its 
distribution means on site.  
The evidence of record should 
be reviewed and discussed 
within the context of the 
response, and the opinion of 
Dr. B submitted since the May 
2005 Board decision should be 
addressed with the overall 
evidence of record.  As to the 
question of the relative 
likelihood that the veteran's 
MDS was caused by in-service 
exposure to Agent Orange, the 
evidentiary basis for your 
response should include 
pertinent reference to the 
published conclusions of the 
National Academy of Sciences' 
Institute of Medicine and 
should highlight any 
agreements or disagreements 
you might have therewith.

Following the above analysis, 
our ultimate question is 
whether, in your opinion, it 
is at least as likely as not 
(i.e., to a degree of 
probability of 50 percent or 
more), or unlikely (i.e., a 
probability of less than 50 
percent) that the veteran's 
MDS is a result of in-service 
exposure to Agent Orange 
and/or other herbicide agents 
used as defoliants in Vietnam.

The written opinion in response to the foregoing, dated in 
February 2008 is, in pertinent part (without citations or 
attachments), as follows:

The chemical structure of Agent Orange is 
composed of Benzene Rings, and it is as 
likely as not that exposure to Agent 
Orange also involves exposure to the 
effects of its components, that is 
Benzene constituents.  Benzene is a known 
causative agent of acute myeloid 
leukemia, and is extensively documented 
in medical and environmental literature.  
A specific report summary by the 
Institute of Medicine, Gulf War and 
Health: A Literature Review of Pesticides 
and Solvents (2003) determined that there 
was sufficient evidence of causal 
relationship of Benzene to Acute Leukemia 
was well  other bone marrow damage 
(Aplastic Anemia).  Other articles for 
Benzene induced leukemia have appeared in 
recent peer reviewed journals.  I have 
also reviewed the previous evaluation 
letter in this dispute by (M.D.B., M.D.) 
and agree with his reasoning and 
conclusion.

Having reviewed all records submitted in 
this case, I believe the preponderance of 
the evidence of exposure to dibenzo-p-
dioxins (Agent Orange and solvents) and 
the association with the veteran's 
Myelodysplasia/ Leukemia should be 
resolved in the veteran's favor.  It is 
at least as likely as not that there is a 
relationship/ association/causative 
effect between the exposure to the 
pesticide/solvents used in its 
distribution and his MDS/Leukemia as 
described by medical literature in both 
animal and human exposures

Specifically, in response to questions 
asked regarding the veteran's appeal:

        (a) Current Diagnosis: 
Myelodysplastic Syndrome/ Acute 
Leukemia/Trisomy VIII, post-transplant, 
on Immunosuppressive therapy.
        
        (b) His current diagnosis is at 
least as like as not, by weight of 
current medical data, attributable to 
Agent Orange/solvents exposure during his 
service in Vietnam.  A latent period of 
clinical signs does not exclude the 
conclusion.
        
        (c) The herbicide exposure is a 
causative, likely as not, by medical 
literature, and it is medically and 
logically sound to find the impact of the 
exposure indeed eventuated in his disease 
and need for transplant.
        
        (d) The known content of Benzene 
rings in herbicides sprayed in Vietnam, 
is an inherent part of Agent Orange 
structure (dibenzo-p-Dioxin).  As 
discussed above, and supported by the 
attachments, exposure to Benzene is 
causative of MDS/Acute Leukemia.
        
It is my considered medical opinion, in 
agreement with the IOM findings on Health 
Effects Associated with Solvents, that 
there sufficient evidence for a causal 
relationship between Benzene exposure and 
acute leukemia, whether it passes through 
the Myelodysplastic syndrome (preleukemia 
stage) or skips it.  I also agree with 
the IOM finding that there is at least 
suggestive evidence of an association 
between exposure to solvents and 
myeloplastic syndrome and as outlined in 
[Dr. M's] letter.  In my medical opinion 
and judgment, it is at least as likely as 
not, that the weight of medical evidence 
makes it medically sound to find in favor 
of causation.  The argument advanced 
against judgment in favor of the veteran, 
that acute leukemia is not listed in the 
VA Agent Orange Review, as one of the 
conditions recognized in veterans, is a 
specious one.  Soft tissue sarcoma was 
described in peer reviewed medical 
literature long before it was eventually 
"recognized" and listed 
administratively by VA.  [Emphasis in 
original]

Another clinical statement is now of record relating to care 
at a cancer facility in January 2008; this was received 
pending receipt of the above opinion and has also been 
considered herein.

On review of the considerable medical evidence now in the 
file, the Board finds that a sound and ample basis is 
available for an equitable and positive resolution of the 
pending claim.  Although the evidence is not entirely 
unequivocal, a reasonable doubt is raised which must be 
resolved in the veteran's favor.  

In view of the foregoing, service connection is warranted for 
myelodysplastic syndrome (MDS) [refractory anemia with excess 
of blasts, trisomy VIII] or acute myelogenous leukemia (AML) 
as being the result of military service.


ORDER

Service connection for myelodysplastic syndrome (MDS) 
[refractory anemia with excess of blasts, trisomy VIII] or 
acute myelogenous leukemia (AML), claimed to be as a result 
of dioxin or benzene exposure in service, is granted.



________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs