Citation Nr: 1327908	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  10-00 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for pneumonia.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel







INTRODUCTION

The Veteran had active military service from November 1990 to March 1991, with additional service in the Army National Guard.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

That decision denied service connection for myelodysplastic syndrome with 5q deletion, anemia, and pneumonia.  The Veteran timely appealed these issues, and the Board remanded them in February 2012 for additional development.  In June 2013, the Veteran's claims for myelodysplastic syndrome with 5q deletion and anemia were granted.  His remaining claim of entitlement to service connection for pneumonia has returned to the Board for further review.


FINDING OF FACT

The Veteran has recurrent pneumonia that is as likely as not related to his service-connected myelodysplastic syndrome with 5q deletion.


CONCLUSION OF LAW

The criteria for service connection for pneumonia are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (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).  In this decision, the Board grants service connection for pneumonia.  This award represents a complete grant of the benefit sought on appeal.  Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities under the VCAA is not necessary.

Generally, service connection may be established on a direct basis for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may also be shown on a secondary basis for disability that is due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

The Board remanded this claim in February 2012 for the purpose of attempting to gather information on whether the Veteran was exposed to benzene, a carcinogen, and if so, to obtain a medical opinion on whether that exposure was related to his claimed disabilities.  Based on this development, service connection was found to be warranted for myelodysplastic syndrome with 5q deletion.  In the March 2012 medical opinion that the condition was related to service, it was also noted the condition was severe, and that it was secondarily causing bruising, dyspnea, and opportunistic infections including fungal infections and pneumonias.

A medical opinion was obtained specifically concerning pneumonia as well.  In the March 2012 VA examination report, the examiner checked the box under "direct service connection" indicating that pneumonia was as likely as not related to service.  Under "secondary service connection," he checked the box indicating that pneumonia was less likely as not related to myelodysplastic syndrome with 5q deletion.  The Board finds that this was a typographical error, because the VA examiner's written opinion notes that pneumonia is seen more often in individuals with compromised immune systems, and that the Veteran's pneumonias are likely related to, and his earlier pneumonias were likely an early symptom of, his myelodysplastic disorder.  He further noted that symptoms of his myelodysplastic disorder manifested at the same time his pneumonias began, in the early 2000's.  The Board finds this evidence to be probative, and strongly weighing in favor of service connection.

In sum, the Veteran has been diagnosed with myelodysplastic syndrome with 5q deletion, which has been characterized as severe.  This disorder leaves the Veteran susceptible to opportunistic infections, including recurrent pneumonias.  There is no contradictory evidence that probatively outweighs the March 2012 VA examination reports opining that the Veteran's pneumonias are related to his service-connected myelodysplastic disorder.  Accordingly, the Board finds that the criteria for service connection for pneumonia as secondary to service-connected myelodysplastic syndrome with 5q deletion are met.  See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.310.  Therefore, service connection for recurrent pneumonias is warranted.


ORDER

Service connection for pneumonia is granted.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs