Citation Nr: 18152117 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 14-06 782 DATE: November 21, 2018 ORDER Entitlement to service connection for myelodysplasia (leukemia), as due to herbicide exposure, is granted. FINDINGS OF FACT 1. The Veteran was directly exposed to herbicides during his military service. 2. The Veteran has been diagnosed with a form of leukemia. 3. The evidence is in relative equipoise as to whether the Veteran’s leukemia is related to his military service. CONCLUSION OF LAW The criteria for service connection for leukemia have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1967 to May 1970, and from July 1970 to July 1973. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. April 2010 and July 2011 rating decisions reconsidered the previous denial of service connection for leukemia, and continued the denial of the claim. In September 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the claims file. In February 2018, the Board sought a medical opinion from the Veterans’ Health Administration (VHA), which was obtained in July 2018. Entitlement to service connection for leukemia, as due to herbicide exposure, is granted. To prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (table). If a veteran was exposed to an herbicide 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 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307, 3.309(e) (2017). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no dispute that the Veteran has been diagnosed with myelodysplasia. See June 2014 Disability Benefits Questionnaire. The Board notes that the Veteran did serve in Vietnam, as it is consistent with his DD 214. Therefore, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (a)(6)(iii). Additionally, the Board acknowledges that myelodysplasia is not listed as a type of leukemia for which service connection can be granted on a presumptive basis due to herbicide exposure under 38 C.F.R. § 3.307 (a)(6)(iii). However, direct service connection can still 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). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether the disability was otherwise the result of active 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. In the July 2018 VHA opinion, the examiner opined that the Veteran’s leukemia was less likely than not caused by his Agent Orange exposure. She based her conclusions on the lack of scientific evidence available to prove a causal relationship between the two. However, the examiner did acknowledge that some medical evidence in support of a potential association did exist. The Board affords this opinion some probative weight. In a September 2018 private medical opinion, Dr. D. S. opined that the Veteran’s leukemia was more likely than not due to his exposure to herbicides during his service in Vietnam. Dr. D. S. based his conclusions on the Veteran’s age and the absence of factors that would have predisposed him to this form of leukemia. He further cited medical studies, which indicated that herbicide exposure may cause certain types of leukemias, including myelodysplasia. The Board finds that the September 2018 private medical opinion reflects a thorough review of the Veteran’s medical history and contains a sufficient supporting rationale, based upon medical research. Thus, it is afforded probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Despite the negative VHA medical opinion, the Board is also persuaded by Dr. D. S.’s findings which concluded that the Veteran’s leukemia was caused by his herbicide exposure while stationed in Vietnam. Additionally, the Board notes that the VHA opinion acknowledged potentially supportive medical evidence. For these reasons, the Board finds that the evidence is in equipoise regarding whether the Veteran’s leukemia is due to his in-service herbicide exposure. (Continued on the next page)   The benefit of the doubt is resolved in the Veteran’s favor and the appeal is granted. See Gilbert, supra; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel