Citation Nr: 1337170 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-30 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for myelodysplasia syndrome (MDS), to include as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1966 to June 1969. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diageo, California, which denied service connection for MDS. In January 2013, the Veteran testified at a Board video conference hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. In June 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert. A VHA opinion was received in July 2013, and incorporated into the record. The Veteran and his representative were provided a copy of the VHA opinion, and given sixty days to respond. As of this date, the Veteran has submitted no additional evidence; therefore, the Board will consider the current evidence of record in deciding the appeal. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Currently diagnosed MDS is not a chronic B-cell leukemia. 3. The Veteran served in the Republic of Vietnam during the Vietnam War Era and was exposed to herbicides (Agent Orange). 4. Currently diagnosed MDS was not incurred in and is not otherwise etiologically related to service, to include in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for MDS, to include as due to herbicide exposure, have not 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, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326 (2013); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In a June 2006 letter, VA informed the Veteran of the evidence necessary to substantiate his claim for service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The June 2006 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service treatment records, medical articles, the January 2013 hearing transcript, and written assertions from the Veteran and his representative. Further, in June 2013, the Board requested an opinion from a VHA medical expert. The Board finds that the VHA medical opinion obtained in this case is adequate as the examiner reviewed the claims file, provided a detailed description of the history of the disability at issue, and provided an opinion support by a clear rationale. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, the Board will proceed to a decision. Significantly, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained; therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). For the reasons discussed in detail below, currently diagnosed MDS is not a "chronic disease" (leukemia) listed under 38 C.F.R. § 3.309(a) and therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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 that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. " Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, Acute and subacute peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Secretary, under the authority of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442-49, and 61 Fed. Reg. 57,586-89 (1996); Notice, 64 Fed. Reg. 59,232-43 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-60 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for MDS The Veteran contends that he has MDS as a result of exposure to herbicides (to include Agent Orange) or other unspecified chemicals in service in the Republic of Vietnam. The Veteran's DD Form 214 reflects that the Veteran was stationed in Vietnam; therefore, the Board finds that the Veteran was exposed to herbicides during service. The Board further finds that the Veteran has currently diagnosed MDS, subtype refractory anemia. See December 2005 hematology consultation from Dr. W.B. and July 2013 VHA hematology medical opinion. During the January 2013 Board hearing, the Veteran testified that he was told by both private and VA doctors that his MDS was a form of "pre-leukemia." The Veteran has consistently maintained that this MDS is related to in-service exposure to Agent Orange while serving in Vietnam. Although the Board has found that the Veteran was exposed to herbicides during service, the Veteran's current disability (MDS) is not among the diseases listed in 38 C.F.R. § 3.309(a) or (e) for which presumptive service connection is available based on "chronic" symptoms in service, "continuous" symptoms after service separation, or in-service herbicide exposure. See 38 C.F.R. § 3.309(a) or (e). Specifically, the Board finds that, although sometimes referred to as "pre-leukemia," (see Dorland's Illustrated Medical Dictionary 1840 (32nd ed. 2012), MDS is not actually "leukemia" and is not a "chronic B-cell leukemia" as contemplated under the presumptive service connection provisions of 38 C.F.R. § 3.309(a) and (e). These findings are supported, in large part, by the competent and probative July 2013 VHA hematologist medical opinion. Upon review of the claims file, to include other hematology opinions of record, bone marrow reports, and hemograms, the July 2013 VHA hematologist opined that MDS was not a chronic B-cell leukemia and stated that the Veteran was not suffering from a malignant oncologic disorder (i.e., leukemia). Instead, the Veteran's diagnosed MDS included a more specific subtype diagnosis of refractory anemia. The Board further finds that VA treatment records and a private December 2005 hematology consultation from Dr. W.B. do not demonstrate that MDS is a form of leukemia, or more specifically, a chronic B-cell leukemia. For these reasons, the Board finds that because currently diagnosed MDS is not considered "leukemia," the presumptive service connection provisions of 38 C.F.R. § 3.309(a) are not for application. See Walker, 708 F.3d 1331. Further, presumptive service connection based on in-service exposure to herbicides is not warranted under 38 C.F.R. § 3.309(e) as the Veteran's MDS is not considered a "chronic B-cell leukemia." That notwithstanding, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In this regard, service treatment records are negative for any complaints, diagnosis, or treatment for MDS or refractory anemia or related symptoms. Further, the Veteran was diagnosed with MDS in 2005, 36 years after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board finds that this evidence is one factor weighing against a finding that MDS had its onset in service or is otherwise related to service. The Board finds that the December 2005 private hematology consultation from Dr. W.B. further weighs against a finding that MDS is etiologically related to service, to include in-service herbicide exposure. Dr. W.B. noted that he reviewed VA treatment notes, reported on the Veteran's social history, medical treatment, and conducted a physical evaluation. Dr. W.B. then assessed the Veteran with MDS, refractory anemia variant with the chromosome 7 deletion per bone marrow biopsy in August 2005. Dr. W.B. noted that the Veteran had been informed that, based on the Agent Orange website and from other literature, a relationship existed between lymphomas and sarcomas and Agent Orange; however, there was no relationship to MDS. Additionally, a July 2013 VHA hematology medical opinion, provided at the Board's request, also found that the Veteran's MDS was less likely than not related to service. In support of this finding, the VHA hematologist noted that there were only two well-recognized causes for MDS: (1) advanced age; and (2) prior treatment with a group of chemotherapy drugs called alkylating agents. It was noted that there were innumerable meta-analyses, case-control studies, environmental, occupational, and industrial toxin exposure studies, none of which, under mathematical and peer review research scrutiny, demonstrated unequivocal etiologies for MDS. Some studies suggested that long-term, low dose exposure to a variety of chemicals may lead to MDS; however, these were noted as "very questionable" statistical findings. The Board finds the July 2013 VHA medical opinion be highly probative. See Prejean, 13 Vet. App. at 448-9 (2000). The Veteran submitted a February 2010 private medical opinion from hematologist Dr. M.M., which purported to relate MDS to the Veteran's in-service herbicide exposure. After obtaining the Veteran's history and reviewing private treatment records, Dr. M.M. concurred that the Veteran had a diagnosis of MDS. Further, Dr. M.M. noted that there was well-described increased association between farmers in the Midwest with exposure to fertilizers and herbicides and an increased risk of non-Hodgkin's lymphoma. Dr. M.M. then opined that MDS was a frequent condition in the older population and any exposure to radiation or cytotoxics, including herbicides, "might causally be related to the development of his [the Veteran's] condition during his lifetime." The Board finds that the February 2010 medical opinion from Dr. W.W. lacks probative value for two reasons. First, Dr. M.M. did not provide a clear and well-reasoned rationale for the opinion rendered. Specifically, although Dr. M.M. stated that a well-described association exists between exposure to herbicides and increased risk of non-Hodgkin's lymphoma, the Veteran has not been diagnosed with non-Hodgkin's lymphoma; therefore, an opinion purporting to relate non-Hodgkin's lymphoma with herbicide agents is irrelevant in the Veteran's case. Further, and considered in its full context, Dr. M.M.'s opinion stating that any exposure to radiation or cytotoxics, including herbicides, "might" causally be related to the development of the Veteran's MDS lacks probative value because it is an opinion of mere possibility and not probability. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185 (1999) (the Court held that a physician's opinion the veteran's time as a prisoner of war "could have" precipitated the initial development of a lung condition, by itself and unsupported and unexplained, was "purely speculative"); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). For these reasons, the Board finds the February 2010 medical opinion to be of little probative value as to whether currently diagnosed MDS is related to service, to include in-service herbicide exposure. The Board has also considered the Veteran's statements and hearing testimony purporting to relate currently diagnosed MDS to in-service herbicide exposure; however, the Board finds that the Veteran is not competent to render an opinion as to whether MDS is etiologically related to service. As a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of MDS. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). MDS, subtype refractory anemia, is a medically complex disease process that has multiple possible etiologies and requires specialized testing to diagnose. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). The etiology of the Veteran's current MDS is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. The Board has also reviewed and considered various internet documents submitted by the Veteran indicating that there may be a relationship between herbicide exposure and MDS; however, these submissions were informational sites and obituaries, none of which were medical or scientific journals relating the MDS to herbicide exposure. As such, the Board finds that these internet articles do not provide a link between currently diagnosed MDS and service. For these reasons, the Board finds that the weight of the competent and probative evidence of record demonstrates that MDS was not incurred in service and is not otherwise related to service, to include in-service herbicide exposure. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for MDS, to include as due to herbicide exposure and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for MDS, to include as due to in-service herbicide exposure, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs