Citation Nr: 1321635 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 07-07 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a bone marrow disability to include myelodysplasia. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1973. This matter comes to the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Nashville, Tennessee. Although the Veteran initially filed a claim for service connection for myelodysplasia, the Board has restyled the issue to include any potentially relevant bone marrow disorder shown by the evidence. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This case was remanded by the Board for additional development in January 2009, March 2010 and October 2012. FINDING OF FACT A bone marrow disability was initially demonstrated many years after service discharge and has not been shown to be causally related to the Veteran's active service, to include exposure to any herbicides while serving in Vietnam. CONCLUSION OF LAW A bone marrow disability, to include myelodysplasia, was not incurred or aggravated in-service, and , are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2005 and January 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the March 2013 supplemental statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. This matter was last remanded by the Board in October 2012 to obtain an a medical opinion. The Board finds that the instructions set forth in its October 2012 remand were substantially complied with, and that VA fulfilled its duty to assist. Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of entitlement to service connection for a bone marrow disability to include myelodysplasia. The Veteran contends that he has myelodysplasia as a result of exposure to herbicides or unspecified chemicals in service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) who develops one of these conditions. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). In this case, the Veteran served in the Republic of Vietnam. Hence, he is presumed to have been exposed to Agent Orange during such service, for the purpose of this discussion. The record, however, does not establish that the Veteran has been diagnosed with a disability listed as one of the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). In this regard, a bone marrow disorder, to include myelodysplasia, is not a disorder that may be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Because the disability for which the Veteran is claiming service connection based on exposure to herbicide is not listed under 38 C.F.R. § 3.309(e), he is not entitled to service connection for this disability on a presumptive basis stemming from his exposure to herbicides in service. The regulations governing presumptive service connection for herbicide exposure, however, do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. Post-service medical evidence reflects that examination findings were suspicious for myelodysplasia in August 2004 and an impression of possible myelodysplasia was given in October 2004. In November 2004, it was noted that the Veteran had myelodysplasia and was still seeing hematology for that disorder. In August 2006, Dr. H pointed out that the Veteran had a history of myelodysplasia which is an acquired disorder of bone marrow leading to leukopenia, thrombocytopenia and anemia the etiology of which certainly could be related to toxic exposures in the past. In February 2009, a VA examiner, Dr. N concurred with the diagnosis of myelodysplasia. The VA examiner in April 2009, a VA examiner noted that the Veteran was diagnosed in 2004 with having myelodysplasia. As far as he knew, the Veteran had not received any therapy specific for myelodysplasia and at that point the Veteran was stable but that the disease was present and probably would eventually progress. In May 2009, Dr. N, the VA examiner how conducted the April 2009 study, opined that there was less than a 10 percent chance that the Veteran's myelodysplasia was related to his service or exposure to herbicides or toxic substances. Dr. S, an oncologist, opined in April 2010 that the Veteran had a diagnosis of myelodysplastic syndrome. She stated that, according to the history, the Veteran was exposed to multiple chemicals in Vietnam as a firefighter. She opined that there is a greater than 50/50 chance that his exposure to this "could have" (sic) caused his myelodysplastic syndrome. Additionally, she stated that he was firefighter on a ship with asbestos exposure which would increase a greater than 50 percent chance that he has an illness secondary to his time in service and exposure as discussed above. In July 2010, a VA hematology note indicated that the Veteran came to the clinic for an opinion about his myelodysplasia. It was noted that the Veteran neither exhibit dyspoietic morphology to rule in myelodysplasia and his genetic analysis did not show common karotypic abnormalities indicating myelodysplasia in 2004. The physician, however, concluded that although the Veteran did not meet definitive morphological or karotypical criteria for myelodysplasia, his disease could clinically be called myelodysplasia per low counts. In July 2011, Dr. N concluded that the Veteran did not have myelodysplasia. Rather, the Veteran was diagnosed with cirrhosis of the liver with hypersplenism secondary to cirrhosis causing pancytopenia. In a November 2012 addendum opinion, VA examiner, Dr. W concurred with Dr. N evaluation and found that it was unlikely that the Veteran has mild dysplasia. Dr. W. stated that myelodyplasia is a progressive disorder. Significantly, the Veteran's March 2011 bone marrow's demonstrated no evidence of myelodysplasia. Dr. W. opined that myelodysplasia does not behave in a manner where it can resolve with future bone marrows. Dr. W related that the Veteran's liver disease and cirrhosis explains his pancytopenia and bone marrow findings. Given the fact that the Veteran does not have, nor has never had myelodysplasia, there is no reason to think that his service, in any way, produced, a bone marrow or blood disorder. In January 2013, VA examiner, Dr. K, opined that the Veteran's liver disease condition and cirrhosis is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event or illness. She found that records indicate the Veteran was diagnosed with infectious mononucleosis in 1973. Separation physical examination, she stated, was silent for liver condition and clinic treatment reports from multiple sources since then were silent for any long term sequlae from this condition. She stated that a gastroenterologist indicated that the etiology of cirrhosis is presumed nonalcoholic steatchepatitis and that this condition is produced by fatty infiltration of the liver. She noted that this has not been associated with Agent Orange exposure. Dr. K found no evidence that this disorder began in service or within one year of discharge from active duty. In light of the evidence summarized above, the Board finds that service connection for a bone marrow disability, to include myelodysplasia, is not warranted. To that end, the Board notes that there is conflicting medical evidence as to whether the Veteran has and/or has had myelodysplasia. Without making any determination on this matter, the Board finds that the record does support a finding that the Veteran has a bone marrow disability. The more probative evidence, however, shows that such is not otherwise related to service. Service treatment records are negative for complaints, symptoms, findings or diagnosis of any bone marrow abnormality. Rather, as noted above, post-service medical evidence reflects a showing of possible myelodysplasia in 2004, more than three decades after separation from active duty. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, to the extent to which the Veteran provides an opinion as to the etiology of his bone marrow disability, the Board finds he is not competent to render such an opinion as the evidence does not demonstrate that he possesses the ability, knowledge, or experience to provide such an opinion in this case. Unlike some disorders, the etiology of a bone marrow disability goes beyond a simple and immediately observable cause-and-effect relationship, and would require review and interpretation of clinical tests and knowledge of hematology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The Board also finds that the opinion of Dr. H lacks probative value. Although Dr. H found that the Veteran had a history of myelodysplasia which certainly could be related to toxic exposures in the past. He did not expressly attribute such to service. The Board also notes that while Dr. S stated that the Veteran was exposed to multiple chemicals in Vietnam as a firefighter and that there is a greater than 50/50 chance that his exposure to this could have caused his myelodysplastic syndrome, the use of the word "could" renders the opinion speculative at best. Dr. H's use of the word "could" also renders his opinion speculative. As such, the opinions have diminished probative value. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The November 2011 and January 2013 VA examiner's opinions, however, are more probative. Although the Veteran's private examiners diagnosed myelodysplasia, VA examiners found that the bone marrow demonstrated no evidence of myelodysplasia. Rather, Dr. W related that the Veteran's liver disease and cirrhosis explains his pancytopenia and bone marrow findings. Dr. K then opined that the Veteran's liver disease condition and cirrhosis is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event or illness. Dr. K's opinion is well reasoned and very thorough, and takes into account the Veteran's in-service and post-service history. The opinion of the VA examiner is definitive and also consistent with the historical record. While the Veteran may have had bone marrow findings, the most probative evidence demonstrates that any bone marrow disability is not related to service. Rather, the Veteran's liver disease and cirrhosis explains his pancytopenia and bone marrow findings. The Board acknowledges that the Veteran has submitted literature on myelodysplasia to include possible causes. The articles, however, are not specific to his facts and the findings were not based on the appellant's particular history and circumstances. As noted, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Id. at 33. Here, crucially, the articles are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case. On review, the most probative evidence is against a finding that any bone marrow disability is related to active military service or events therein. In making this determination, the Board acknowledges the Veteran's contentions, but notes that as a lay person, he is not competent to render an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Under these circumstances, the Board finds that the claim of entitlement to service connection for a bone marrow disability, to include myelodysplasia, must be denied. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent and probative evidence preponderates against entitlement to service connection for myelodysplasia, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a bone marrow disability to include myelodysplasia is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs