Citation Nr: 1337944 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-32 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for myelodysplastic syndrome (MDS), to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to March 1969, including verified service in Vietnam from March 1968 to March 1969. He is a recipient of the Purple Heart and the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned during a Board hearing via videoconference in May 2013. A transcript of the hearing has been associated with the claims file. In August 2013, the Board requested a medical opinion from a health care professional in the Veterans Health Administration (VHA) regarding the etiology of the Veteran's MDS and particularly, whether or not it is related to herbicide exposure in Vietnam. The Board determined that such an opinion was necessary to address the medical questions raised by the case. 38 C.F.R. §20.901(a), (d). The Veteran was notified that the Board intended to seek such an opinion. Given the favorable nature of this decision, the Board finds that there is no prejudice to the Veteran in adjudicating this matter that this time. A review of the Veterans Benefit Management System (VBMS) and the Virtual VA paperless claims processing system reveal documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran served in Vietnam. His exposure to Agent Orange during service is therefore presumed. 2. The Veteran has MDS that is due to herbicide exposure in service. CONCLUSION OF LAW MDS was incurred in active service. 38 U.S.C.A. §§ 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is fully favorable to the Veteran, further discussion of VCAA is not required at this time. The Board notes that as the Veteran served in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(a)(1)(B)(ii); 38 C.F.R. § 3.307(a)(6)(iii). To the extent that the Veteran reports that he was exposed to Agent Orange during service, that is accepted as fact. Also, the Veteran has been awarded a Purple Heart and the Combat Infantryman's Badge, indicative of combat participation. Although a combat veteran, section 1154(b) is not applicable in this instance, as the Veteran does not claim that his MDS incurred in combat. See 38 U.S.C.A. § 1154(b) Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran avers that his MDS is due to exposure to the dioxin and benzene contents of Agent Orange. He further argues that MDS is similar to certain cancers that are included in the presumptive regulations in 38 C.F.R. § 3.309(e). However, MDS is not a listed disease for which veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Moreover, VA has determined that there is no positive association between exposure to Agent Orange and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630, 27641 (May 20, 2003). This does not end the Board's inquiry. The lack of availability of service connection on a presumptive basis for a particular disease does not preclude consideration of entitlement to service connection for that same disease on a direct basis. 38 U.S.C.A. § 1113(b)(nothing in laws relating to presumptive service connection "shall be construed to prevent the granting of service connection for any disease or disorder otherwise shown by sound judgment to have been incurred in or aggravated by . . . service"). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 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). The Veteran has submitted medical records and opinions, and articles and other materials from the Internet, in support of his assertion that his myelodysplastic syndrome (MDS) is a result of his exposure to Agent Orange in Vietnam. The record also contains several positive nexus opinions from physicians relating the Veteran's current diagnosis to service. For the following reasons, the Board finds that service connection is warranted. In November 2002, the Veteran was diagnosed with MDS. In November 2009, Dr. J.V.M. wrote that he had followed the Veteran with respect to a bone marrow disorder known as myelodysplastic syndrome since 2004. He noted that the Veteran's disease frequently results as a complication of an exposure. He cited examples of known exposures as chemotherapy and radiation. He noted that the Veteran was exposed to Agent Orange in 1968 and 1969. He reviewed a list of Agent Orange presumptive conditions and noted that many diseases were included that he treats on a regular basis as a specialist in blood cancers or hematologic malignancy. He noted that covered diseases included chronic lymphocytic leukemia, amyloidosis, Hodgkin's lymphoma, multiple myeloma, and non-Hodgkin's lymphoma. He wrote that he was stupefied to see that acute myeloid leukemia and myelodysplastic syndrome were left off of the list. He opined that the preponderance of the data suggest that the Veteran's myelodysplastic syndrome was related to in-service exposure during his service in Vietnam. He elaborated that it was his opinion that it was more likely than not that the Veteran's current myelodysplastic syndrome is related to his active military service to include exposure to Agent Orange. In a May 2013 letter, Dr. N.D. wrote that "[i]n my opinion, it is unlikely that anything other than exposure to Agent Orange during this Veteran's service in [t]he Republic of Vietnam caused his [m]yelodysplastic syndrome." In a June 2013 letter, Dr. N.D. noted that the Veteran was diagnosed with a form of MDS known as refractory anemia with ringed sideroblasts in 2002. He noted the Veteran's exposure to Agent Orange while serving in Vietnam. He wrote that the myeloid malignancies, of which MDS is one type, are well known to be frequently caused by environmental toxins, including benzene and dioxin, both of which are contained in Agent Orange. He wrote that benzene in particular has been known to cause mutational changes and cytogenetic abnormalities that can result in myelodysplastic syndrome and AML. He asserted that there are numerous citations in the literature establishing the connection between environmental exposure and the development of MDS. He cited to three such studies. Dr. N.D. asserted that, based on these observations in the literature, it is clear that toxin exposure, either in the form of Agent Orange or other benzene/petroleum products, can damage the bone marrow and lead to the development of myelodysplastic syndrome. He concluded that it would therefore seem appropriate that the Veteran should receive compensation for such a service-connected illness. The October 2013 VHA expert, Dr. L.M.S., reviewed the entire evidence of record, to include the Veteran's lay statements and previously submitted medical records and opinions from other physicians. Accepting in-country service in Vietnam, Agent Orange exposure, and a confirmed diagnosis of MDS, the expert explained the types of literature in support of the fact that MDS is associated with exposures to certain chemicals and/or toxins with benzenes and dioxins as the most frequently cited known exposure. The expert agreed with the references previously cited by Dr. N.D. The expert stated that Agent Orange can be contributory to the development of some diseases that have a prevalence rate in this country that are epidemic in frequency and occur in many patients without such exposure. There has also been a clear association with Agent Orange to some other myeloproliferative conditions and other leukemias. However, he explained, MDS is relatively rare and might be much more considered as developing from an exposure to a toxin or environmental agent. Thus, given the relative rarity of MDS, known association to exposures, and with known associations of Agent Orange to some more commonly identified leukemias/lymphoproliferative diseases, the expert opined that it is at least as likely as not that the Veteran's MDS is related to his exposure to certain herbicide agents, to include Agent Orange, during his specific period of service in Vietnam. The Board accords varying degrees of probative value to the aforementioned evidence, but assigns the highest probative value to the VHA expert's opinion. The expert's opinion was based on a complete review of the casefile, to include the Veteran's medical and service history, lay statements, and literature submitted by the Veteran and cited by other medical professions. He also articulated thorough supporting rationale as to his finding of a positive association between the Veteran's MDS and herbicide exposure based upon his medical expertise and the facts of the Veteran's case. Thus, on this record, the Board finds that the preponderance of the evidence demonstrates that the Veteran's MDS is related to active service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is nothing in the evidence to prove otherwise. Accordingly, the benefit sought on appeal is granted. ORDER Service connection for myelodysplastic syndrome (MDS) is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs