Citation Nr: 1136733 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-18 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a blood disorder described as hypocellular myelodysplastic syndrome (MDS), to include as secondary to exposure to herbicides during service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In December 2009, the Board remanded the case to the RO, via the VA Appeals Management Center (AMC), for the development of additional evidence. In addition, the Board directly requested and obtained medical opinions regarding the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims file contains a physician's statement indicating that in February 2009 the Veteran, who served in Vietnam, was diagnosed with type 2 diabetes mellitus. Thus, the issue of service connection for diabetes has been raised by the record, but does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in Vietnam in 1968 and 1969 and is presumed to have been exposed to herbicides. 2. Competent medical evidence indicates that it is as likely as not that the Veteran's hypocellular myelodysplastic syndrome is related to his military service. CONCLUSION OF LAW The criteria for establishing service connection for hypocellular myelodysplastic syndrome have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). In this case, the Board is granting the benefit sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating the claim. The Veteran has a blood disorder that has been described as aplastic anemia or hypocellular myelodysplastic syndrome (MDS). He contends that the disorder developed as a result of his exposure to herbicides during his service in Vietnam. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to 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 service. 38 C.F.R. § 3.307(a)(6)(iii). Under certain circumstances, service connection for specific diseases may be presumed if a veteran was exposed during service to certain herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e) (2011). If a veteran was exposed an herbicide agent, service connection for certain conditions listed under 38 C.F.R. § 3.309(e) will be presumed if the condition becomes manifest to a degree of 10 percent disabling or more. Neither MDS nor aplastic anemia is included in the conditions listed at 38 C.F.R. § 3.309(e). The Veteran served in Vietnam from January 1968 to January 1969. He is presumed to have been exposed to an herbicide agent during that service. The disorder that the Veteran is claiming in this appeal, however, is not subject to a presumption of service connection based on herbicide exposure. Thus, for service connection to be established for the Veteran's MDS, there must be competent evidence that the condition developed as a result of military service. The Veteran does not contend that he had signs of his current MDS during service; and his service treatment records are silent for any blood disorder. The Veteran has reported that, since 1998, testing of his blood has shown one or more abnormalities, including a low white blood cell count. Private medical treatment records from 2002 and 2003 contain findings of neutropenia, leukopenia, and thrombocytopenia, described as being of uncertain etiology. VA treatment records from 2004 forward address a blood disorder. In 2004 and 2005, clinicians described the blood findings as leukopenia of unknown etiology. In hematology and oncology treatment in 2006 and 2007, clinicians found that the Veteran had leukopenia and thrombocytopenia, and described the blood condition as aplastic anemia versus hypocellular MDS. The Veteran has submitted a 2007 internet article stating that exposure to toxic chemicals can increase the risk for aplastic anemia. A 2008 article stated that aplastic anemia is sometimes associated with substances such as benzene. A 2009 article indicates that dioxins form from benzene molecules, and states that many diseases, including leukemia, have been linked to dioxin. A 2009 article on MDS notes that benzene exposure is among the risk factors for MDS. In VA treatment notes from April 2008, the treating physician described the Veteran's condition as aplastic anemia, and stated that the process likely had been ongoing for almost 20 years. In private treatment in June 2008, a clinician stated that bone marrow aspirate analysis showed evidence that the Veteran's MDS might soon become acute myelogenous leukemia (AML). In a July 2009, VA oncologist A.V.R., M.D., wrote that the Veteran was under his care for a disorder diagnosed initially as aplastic anemia, and presently as MDS. Dr. R. stated that the Veteran had undergone chemotherapy, and was now undergoing another round of chemotherapy to try to slow or halt the process of conversion from MDS to AML. In the December 2009 remand, the Board called for a VA examination and file review, with an opinion as to the likelihood that the Veteran's MDS is related to his exposure to herbicides during service. In April 2010, VA physician J. C. M., M.D., reviewed the Veteran's claims file and examined the Veteran. Dr. M. concluded that the Veteran has MDS. Dr. M. opined that there is no evidence that Agent Orange exposure or work as a coal handler is a cause of MDS. The Board requested that a VA specialist review the claims file and provide an opinion with respect to the case. Z.Y., M.D., of the Hematology and Oncology section of a VA Medical Center reviewed the Veteran's claims file and medical literature, and provided an opinion in February 2011. Dr. Y. discussed the characteristics of MDS in general and the Veteran's MDS specifically. She stated that MDS may arise years after exposure to environmental toxins like benzene. She reported that the relationship between herbicide exposure and MDS had not been studied very extensively, and data directly linking the two were not available. Regarding a link between herbicide exposure and MDS, Dr. Y. wrote, "Hypothetically it is probably very possible, though not proven." She stated that there is no direct, evidence-based association between Agent Orange and MDS. She opined that further study of a possible association would be needed before such an association could be ruled out. She noted that other environmental toxins, including pesticides, have been associated with MDS. Dr. Y. recommended that the Veteran be given the benefit of the doubt and awarded service connection for his MDS. In April 2011, the Board requested an addendum providing clarification of Dr. Y.'s opinion. In June 2011, Dr. Y. provided an addendum to her February 2011 opinion. She stated that the herbicide Agent Orange contains more than one chemical compound, and reportedly was often mixed with kerosene or diesel. She noted that petroleum industry workers exposed to hydrocarbons are at higher risk of developing pre-cancerous conditions like MDS. She stated that herbicides have been associated with leukemia, and that leukemia and MDS sometimes exist in the same patient. She described relationships between leukemia and the immune system, and between the immune system and hypocellular MDS, the less common form of MDS that the Veteran has. "In my opinion," Dr. Y. wrote, "the patient's hypocellular MDS in all likelihood could have resulted from exposure to agent orange which is a known herbicide." Dr. Y. again recommended that service connection be established for the Veteran's MDS. Dr. Y. essentially opined that a causal connection between the Veteran's herbicide exposure and his post-service MDS is as likely as not. She cited to medical literature as to why such a relationship is possible and provided a rationale for her conclusion. Although her wording is indirect, it is clear that she supports the conclusion that the condition should be service connected. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Upon review of the record, the Board finds that the competent evidence in this case is in equipoise as to whether the Veteran's hypocellular MDS is related to service. Accordingly, the Board will resolve all doubt in the Veteran's favor and conclude that the facts as presented in this case only warrant service connection for MDS. ORDER Entitlement to service connection for hypocelluar myelodysplastic syndrome is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs