Citation Nr: 1229167 Decision Date: 08/24/12 Archive Date: 08/30/12 DOCKET NO. 10-09 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for myelodysplastic syndrome including as caused by exposure to herbicide. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board sitting at the RO in January 2012. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND Service personnel records showed that the Veteran served as a U.S. Army infantryman with combat duty in the Republic of Vietnam from May 1966 to May 1967. He was awarded the Air Medal, Purple Heart Medal, and Combat Infantryman's Badge. He subsequently served in the Army Reserve/National Guard and retired at the rank of colonel. He contends that his myelodysplastic syndrome (MDS) was caused by exposure to herbicide in service. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran served in Vietnam during the required time, he is presumed to have been exposure to the designated specified herbicide agents. These agents are those that were used in support of U.S. and allied military operations in the Republic of Vietnam that contained chemicals 2,4-dichlorophenoxyacetic acid (2,4-D), 2, 4, 5 trichlorophenoxyacetic acid (2,4,5-T) and its contaminant TCDD; cacodylic acid; and picloram. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although certain B-cell leukemias are among those diseases for which a presumption is available, VA has determined that epidemiological research does not show that MDS or progressions such as acute myeloid leukemia warrant the presumption at this time. See also 75 Fed. Reg. 14391 (Mar. 25, 2010); 72 Fed. Reg. 32395 (Jun. 12, 2007). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In February 2005, a private physician specializing in hematology and oncology diagnosed mild macrocytic anemia. The physician noted that the Veteran did not have a family history for anemia or exposure from radiation or chemotherapy. He noted the Veteran's service in Vietnam. However, he also noted that the Veteran denied coming in contact with Agent Orange. The Veteran worked in the past as a state detective and was then a district attorney's office investigator. The Veteran was a tobacco user. In September 2008, the physician noted that the Veteran reported mild fatigue that had not changed much over the past few years. A bone marrow biopsy showed evidence of myelodysplastic syndrome (refractory anemia with ringed sideroblasts). The physician evaluated the disorder as indolent with no immediate intervention required. In April 2009, the physician noted that benzene is a documented causative agent in the development of MDS. The physician noted that because Agent Orange is composed of benzene rings, it was as likely as not that the exposure to Agent Orange "was tantamount to exposure to benzene," and that exposure to Agent Orange was responsible for the Veteran's development of MDS. The physician did not discuss any other risk factors or explain why the molecular ring component (C6H6) was the equivalent to the solvent form of benzene. The physician did not explain how benzene was necessarily formed or released from the herbicide agent after it was applied to vegetation. The Veteran submitted written materials obtained from the internet including government information on benzene, information from medical research and advocacy sources regarding MDS, and several Board decisions in the cases of other veteran's claims relating to MDS. Materials on benzene show that it is a volatile solvent present in crude oil, gasoline, glues, paints, and tobacco smoke. The solvent is used in the manufacture of plastics, rubber, lubricants, dyes, detergents, drugs, pesticides, and herbicides but not present in the final product. Benzene as a solvent is a health hazard and can cause forms of leukemia including acute myeloid leukemia (developed in 30 percent of MDS patients) after high levels of exposure by respiration, ingestion, or skin contact. The solvent evaporates quickly in air. Materials from the medical research and advocacy sources show that exact causes of MDS are not known but that risk factors include radiation, chemotherapy drugs, and benzene. MDS is not caused by food, agricultural products, or a virus and is not contagious. Although there is a higher risk in smokers because benzene is a contaminant in cigarette smoke, there are many other carcinogenic substances present. The Veteran submitted copies of eight Board decisions in which service connection for MDS was granted in appeals by other veterans. Two of the copies were excerpts and were incomplete. The Board cited private and VA medical opinions that were both positive and negative in support of a relationship of the disease to herbicide exposure in seven cases. (In one case, the veteran was exposed directly to benzene solvents during aircraft maintenance.) These decisions are not precedential and references to the specific medical status of the appellant in each case are not relevant. However, the Board will consider the general medical conclusions that exposure to benzene or herbicide is an increased risk factor for MDS. In all positive opinions, the physicians concluded without reference or rationale that the herbicides contained complex organic compounds composed of benzene rings and therefore exposed the veteran to benzene. Two negative opinions found this conclusion flawed as numerous petroleum based products were formulations of organic compounds containing benzene rings. Further, the solvent benzene was not present in the final herbicide product used in Vietnam, and extensive epidemiologic studies did not find a relationship of the designated Vietnam herbicides to the disease. The Board granted service connection in each case because there was only one opinion of record or because the opinions were in equipoise. The Board concludes in this case that the Veteran was exposed to the designated herbicides in service, that he has been diagnosed with MDS, and that the weight of evidence supports the proposition that exposure to high levels of benzene solvent is a known cause for the disease. Significantly, however, the Board finds that there is no rationale to support the statements by several medical practitioners that the herbicide product used in Vietnam contained and released the solvent benzene during or after dispersion because the herbicide was manufactured using benzene, and had a molecular composition including the benzene ring. Even if so, there is no evidence that benzene solvent persisted in concentrations sufficient to cause exposure by respiration, ingestion, or skin contact. The Board concludes that this dispositive issue must be addressed by an expert with knowledge of organic chemistry and the formulation and behavior of herbicides. Accordingly, the case is REMANDED for the following action: 1. Request from the Armed Forces Pest Management Board, U.S. Army Garrison- Forest Glen, 2460 Linden Lane, Building 172, Silver Spring, MD 20910: a. The chemical composition of the tactical herbicide agents used in Vietnam in 1966-67; b. An opinion from a staff scientist or chemical engineer as to whether the final product used in Vietnam contained the solvent benzene or decomposed and released the solvent benzene during and after dispersion. i. If so, the staff scientist or chemical engineer should indicate whether soldiers moving through the area shortly after spraying were exposed to benzene by respiration, ingestion, or skin contact? ii. If not, the staff scientist or chemical engineer should indicate whether there were any other materials or equipment used in the field in Vietnam that would have exposed combat soldiers to benzene? 2. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, if new evidence is received, readjudicate the claim for service connection for myelodysplasia syndrome. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the appellant with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2010). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).