Citation Nr: 1325705	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO. 12-30 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1. Entitlement to service connection for a condition characterized by dizziness, to include vertigo.

2. Entitlement to service connection for myelodysplasia, to include as secondary to radiation exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel
INTRODUCTION

The Veteran had active duty service from May 1943 to November 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The Veteran passed away in December 2010, during the course of his appeal, having filed a notice of disagreement (NOD) during his lifetime. Thereafter, in December 2010, his surviving spouse, the appellant, requested substitution in order to pursue the appeal. 

The Board finds that the appellant was granted substitution status in June 2011. Initially, the Board notes that VA has yet to adopt regulations governing the mechanics of substitution under 38 U.S.C.A. § 5121A(a)(3) (West 2002 & Supp. 2012); see also Substitution in Case of Death of Claimant, 76 Fed. Reg. 8666 (proposed February 15, 2011) (to be codified at 38 C.F.R. pts. 3, 14, 20). 

Despite the lack of formalized rules governing substitution, it is evident that the RO accepted the spouse's request for substitution. In a June 2011 Veterans Claims Assistance Act of 2000 (VCAA) letter, the RO requested that the appellant submit additional evidence to support her claims; such a letter suggests a case of substitution, as in an accrued benefits claim, evidence generated following the Veteran's death, or received by the RO after that date, would not be considered. 38 C.F.R. § 1000 (2012).  Adjudication of an accrued benefits claim would only address the evidence of record at the time of death. Id.

In October 2012, the RO issued a statement of the case that, on its face, only addressed accrued benefits, but considered a significant amount of evidence that was both generated and received after the date of the Veteran's death, and adjudicated the issue of service connection for the claims on appeal. The consideration of the post-December 2010 evidence clearly indicates that the matter has been treated, at least substantively, as a substitution case, rather than one for accrued benefits. It is the Secretary's position that, unlike in claims for accrued benefits, a substitute claimant may rely on evidence not yet of record at the time of the Veteran's death. See Copeland v. Shinseki, 26 Vet. App. 86, 88 (2012). 

Therefore, contrary to some of the documents included in the claims file, this appeal is not one for accrued benefits, but is a continuation of the Veteran's appeal for service connection for myelodysplasia and a condition characterized by dizziness. 

There is no issue with regard to the issuance of a statement of the case on the issues appealed, see Manlincon v. West, 12 Vet. App 238, 240 (1999), as the October 2012 statement of the case adjudicated the merits of the claims for service connection. Furthermore, in a January 2013 brief, the appellant's representative has presented on-point argument concerning the issue of service connection, and has acknowledged that the appellant has been substituted for the Veteran to complete the pending appeal. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1. The Veteran's vertigo had its onset during active duty service and as likely as not has continued since service.

2. Myelodysplasia not among the enumerated conditions for which service connection may be established on a presumptive basis based on exposure to radiation during service.

3. The Veteran's myelodysplasia was not incurred during active service, is not the result of an in-service injury or disease, including exposure to radiation while stationed near Nagasaki, and is not otherwise related to active duty service. 


CONCLUSIONS OF LAW

1. With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for vertigo have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

2. The criteria for service connection for myelodysplasia have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Concerning the issue of entitlement to service connection for a condition manifested by dizziness, this decision constitutes a full grant of benefits, and no discussion of VCAA requirements is necessary.

Concerning the issue of entitlement to service connection for myelodysplasia, the Veteran was sent a letter in August 2009 prior to the initial adjudication in this matter, and the appellant was sent a letter in June 2011 prior to the October 2012 readjudication, that fully addressed all VCAA notice elements for service connection claims. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify.

VA's duty to assist the appellant in the development of the claim includes assisting her in the procurement of the Veteran's service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The RO fully developed the claim under the prescriptives of 38 C.F.R. § 3.311 for claims based on radiation exposure. Furthermore, the Board obtained an April 2013 independent medical opinion addressing the etiology of the Veteran's myelodysplasia.

The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c).
Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


Condition manifested by dizziness, to include vertigo

The Board finds that service connection is warranted for vertigo. During active duty, the Veteran was severely injured in October 1944 while stationed on the U.S.S. Suwannee, when Japanese kamikaze planes struck the ship; he suffered burns as a result of the attack, and had to be rescued from the waters near the ship. Service treatment records from August 1945 indicate that the Veteran complained of headaches.

The Veteran was provided a VA examination in February 1947, slightly more than a year following separation, at which time he complained of dizziness. At that time, he was diagnosed with an anxiety disorder.

There are no treatment records available thereafter until March 1976, at which time the Veteran was diagnosed with vertigo. In March 1976, the Veteran was seen for treatment of headaches that had persisted sine service, accompanied by episodes of vertigo. Other treatment notes from 1976 indicated varying, shorter-term periods of vertigo. For example, another March 1976 treatment note indicated that he experienced dizziness that was worse with sudden head turns, which he had first noted two years prior. 

Private treatment records from December 2002 document a "longstanding history" of vertigo. Then-current symptoms reflected a probable viral labyrinthitis, superimposed on chronic vertigo, but the examiner acknowledged that they could have been an exacerbation of the chronic underlying vertigo. His vertigo symptoms were "probably related to an organ rather than eighth nerve effect."

A different December 2002 treatment record from the same provider indicated that the Veteran had a history of vertigo over the previous ten years.

A February 2003 VA examination report indicated that the Veteran had a history of headaches dating to 1945. The report also indicates that the headaches had been associated with dizzy spells and some instability in gait, which was actually his main concern at the time of the examination. He informed the examiner that he believed his dizziness was related to the attack, and that the symptoms were associated with the headaches that VA had attributed to his service-connected anxiety disorder.  Other records reveal a history of treatment for headaches in the 1960's.

In March 2003, the Veteran received a diagnosis of Meniere's disease. 

Subsequent records (November 2008, December 2008) continued to show treatment for intermittent dizziness, although the Veteran only indicated that his dizziness began in November 2008.

The Veteran's son submitted a September 2009 statement indicating that the Veteran has consistently experienced periods of dizziness throughout the son's life. 

The Board finds that the evidence is in equipoise as to whether the Veteran's vertigo, which was present prior to his death, continued since service. Although his treatment included varying diagnoses, including dizziness, vertigo, viral labyrinthitis, and Meniere's disease, it is apparent that the multiplicity of diagnoses was, at least in part, based on the Veteran's inconsistent reporting of the history of his dizziness symptoms. In short, it is clear to the Board that the Veteran regularly provided his treatment providers with inaccurate histories of his vertigo, in which he indicated that the symptoms had occurred for shorter periods of time than they had actually been present. At times, for example, and contrary to the record of dizziness symptoms dating to the Veteran's military service, he indicated to providers that he experienced dizziness over a period of a few weeks, over the prior two years, or even the previous ten years, as related to the time of the treatment. Despite the Veteran's description of shorter periods of dizziness during his treatment, review of the treatment records themselves show that his dizziness episodes, which formed the basis for the 1976 vertigo diagnosis, dated to his time in service and the injuries he suffered in combat. 

The Board finds that the evidence, especially that from the March 1976 vertigo diagnosis, relating his disease back to service, and the December 2002 record showing a continued vertigo diagnosis, to support the factual finding that his vertigo disorder began during, and continued since, service. Providing the appellant with the benefit of the doubt, service connection for vertigo is warranted. Gilbert, 1 Vet. App. at 55-57.

Myelodysplasia

The Veteran was diagnosed with myelodysplasia in January 2004. The appellant argues that the Veteran's myelodysplasia is attributable to his exposure to radiation in Nagasaki, Japan, in 1945. 

Service connection for a condition that is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways, which have been outlined by the Court. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for Veterans who participated in defined radiation-risk activities and have certain diseases. Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if certain conditions are met. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

As it applies to 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the term "radiation-exposed Veteran" means a Veteran who participated in a "radiation-risk activity." 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii).

Diseases presumptively service connected for radiation- exposed Veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2).

The Board finds that presumptive service connection based on radiation exposure is not warranted here, as myelodysplasia is not one of the diseases for which presumptive service connection can be granted. Id.

As noted above, in radiation claims, the second approach is found in 38 C.F.R. § 3.311. To consider a claim under section 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2).

The regulation states that the term radiogenic disease shall include: (i) all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) non-malignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin's disease; (xxiii) prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). 

If a claim is based on a disease other than one listed in the previous paragraph, as in the present case, VA shall nevertheless consider the claim under 38 C.F.R. § 3.311, provided the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). In this case, multiple physicians have indicated that myelodysplasia may be caused by radiation exposure. Also, the appellant has submitted multiple articles addressing the fact that myelodysplasia can be caused by radiation exposure. Thus, the claim will be considered under 38 C.F.R. § 3.311.

Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing and in claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). 

It is evident that the Veteran was exposed to radiation while on active duty. The Veteran was present in Nagasaki, Japan, for approximately seven days on board the USS Suwannee in Nagasaki Harbor, and two days ashore, between September 14th and 24th,1945. His time in Nagasaki began 36 days after the atomic bomb was dropped. 

The appeal was developed according to the rules found in 38 C.F.R. § 3.311. The Department of Veterans Affairs obtained a "worst case" scenario for radiation exposure through the Defense Threat Reduction Agency (DTRA). According to the DTRA, the Veteran's combined external gamma and internal doses to the bone marrow and blood forming organs from the inhalation and ingestion of contaminants are as follows:

      - Total external gamma dose: 0.056 rem
      - Upper bound total external gamma dose: 0.168 rem

- Internal committed alpha dose to the bone marrow and blood forming organs: 0.006 rem
- Upper bound committed alpha dose to the bone marrow and blood forming organs: 0.059 rem

- Internal committed beta plus gamma dose to the bone marrow and blood forming organs: 0.009 rem
- Upper bound committed beta plus gamma dose to the bone marrow and blood forming organs: 0.091 rem

      The Veteran did not receive a dose of neutron radiation.

Based on that dose assessment, the Director of the Compensation Service sent a request to the Under Secretary for Health to determine whether it was at least as likely as not that the Veteran's myelodysplasia was due to his in-service radiation exposure. In response, Dr. Ciminera, the Director of the Post-9/11 Environmental Health Program issued an opinion, taking into consideration the worst-case dose assessment, that it was unlikely that the Veteran's myelodysplastic syndrome could be attributed to radiation exposure while in service. In support of the opinion, Dr. Ciminera cited Medical Effects of Ionizing Radiation, by Mettler and Upton (3rd ed., Elsevier Publishing 2008), for the proposition that marrow depression usually does not occur with chronic radiation exposure unless doses exceed 40 rem per year. 

Based on that opinion, and consideration of the entirety of the evidence of record, the Director of the Compensation Service issued a finding that there was no reasonably possibility that the Veteran's myelodysplasia resulted from exposure to radiation in service. 

In contrast, there are two medical opinions in support of the appellant's claim. A February 2005 medical report, which did not include the DTRA assessment, but noted that the Veteran was in Nagasaki "approximately two weeks following the Nagasaki atomic bomb," included the examiner's opinion that the in-service radiation exposure during World War II had a "probable relationship" to his myelodysplasia. 

Unfortunately, the February 2005 opinion has no probative value, as it is based on inaccurate facts, and fails to provide any rationale in support of its conclusion. Rather than providing a rationale in support of a relationship between the Veteran's radiation exposure in Nagasaki and his ultimate diagnosis with myelodysplasia, the examiner merely indicated that such a relationship was probable. The lack of a rationale in support of the opinion reduces its probative value. Furthermore, and more importantly, the opinion is based on the inaccurate factual premise that the Veteran was present in Nagasaki two weeks after the atomic bomb. The Veteran was present in Nagasaki more than five weeks after the bomb was dropped. The inaccurate factual foundation of the opinion prevents the Board from assigning any probative value to the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). 

In August 2011, the Veteran's treating VA physicians, Dr. John Hayes, an internist, and Dr. Ayman Saad, certified in hematology and oncology, opined (without the benefit of the DTRA radiation dose assessment) that it was at least as likely as not that the myelodysplasia was a consequence of the Veteran's exposure to radiation in Nagasaki. The doctors failed to include any rationale in support of their opinion, other than the fact that they had been treating the Veteran for a number of years. Based on the lack of rationale in support, including the lack of any suggestion that Doctors Hayes and Saad considered the level of radiation to which the Veteran was exposed in service, or any non-service radiation exposure, the Board finds the opinion to not be probative of the matter. Id. 

Although the positive opinions of record were not probative of the issue of entitlement to service connection, the Board nevertheless felt that the existence of the opinions warranted an additional, non-VA opinion regarding the etiology of the myelodysplasia disorder. Therefore, in March 2013, the Board sought an independent medical opinion. The doctor, a pathologist, considered the Veteran's in-service radiation exposure, the evidence of non-service radiation exposure, as well as the nature of myelodysplastic syndrome, and the history of the Veteran's disorder, and reached the conclusion that the in-service radiation exposure at Nagasaki was not a risk factor for the development of myelodysplasia. 

The doctor found that the exposure at Nagasaki, based on the DTRA report, was only a fraction of the levels of exposure permitted for radiation workers. He opined that even were the exposures during his time in Nagasaki ten times as high as the worst-case scenario, he still would remain below a critical exposure value. Based on that analysis, he determined that the exposure at Nagasaki was not sufficient to be a radiation risk by current standards. 

The examiner found that the Veteran's 30+ pack/year history of smoking "would have contributed to his risk of acquiring" myelodysplasia, because cigarettes have benzene and amounted to the equivalent of 2 chest X-rays per year for 30 years. Other notable risk factors, included the Veteran's age, and the fact that he was male. The doctor acknowledged that there were other unknown risk factors for which he could not account. He ultimately opined that it was "very unlikely, much less than 50% . . . that the Nagasaki Harbor visit had any contribution to the patient[']s development of [myelodysplasia]."

The Board finds that both of the two negative nexus opinions of record are probative of the issue, as they based on the Veteran's actual worst-case radiation exposure levels at Nagasaki, are fully reasoned, and are supported by citations to medical literature. Nieves-Rodriguez, 22 Vet. App. at 302. The independent expert's report is the most probative, as he documents all of the Veteran's knowable risk factors for developing myelodysplasia, and found that the Nagasaki exposure was very unlikely to have affected the development of the disability. 

As the only probative opinions of record are against the appellant's claim, the preponderance of the evidence is against a finding that the Veteran's myelodysplasia was related in-service exposure to radiation in Japan. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309, 3.311.

Finally, direct service connection can be established by "showing that the disease or malady was incurred during or aggravated by service," a task which includes the difficult burden of tracing causation to a condition or event during service.  Combee, 34 F.3d at 1043. There is no evidence that the Veteran's myelodysplasia was incurred during service. His service treatment records are negative for treatment for myelodysplasia, and the record is clear that the disease was first diagnosed in January 2004, following a multi-year period of treatment for chronic anemia, dating to at least 1997. As the Veteran's service occurred in the 1940s, it is plain from the record that the disease began well after service; neither do medical records suggest, nor does the appellant argue, otherwise. Direct service connection is not warranted. 38 C.F.R. § 3.303.

In reaching the conclusion concerning service connection for myelodysplasia, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for vertigo is granted.

Entitlement to service connection for myelodysplasia is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs