Citation Nr: 18156225 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 17-15 860 DATE: December 11, 2018 ORDER Service connection for myelodysplastic syndrome, including as due to exposure to ionizing radiation is granted. REMANDED Service connection for macrocytic aplastic anemia, including as due to exposure to ionizing radiation and/or herbicide agents is remanded. FINDING OF FACT The Veteran is currently diagnosed with myelodysplastic syndrome; the Veteran was exposed to ionizing radiation in service; the current myelodysplastic syndrome is etiologically related to in-service exposure to ionizing radiation. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for myelodysplastic syndrome, as due to exposure to ionizing radiation, have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from October 1956 to July 1960, and from October 1960 to June 1980. Service connection for myelodysplastic syndrome Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. The Veteran is currently diagnosed with myelodysplastic syndrome, which is not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for a disability that is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. First, there are specific diseases that may be presumptively service-connected if manifest in a radiation-exposed veteran. A “radiation-exposed veteran” is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946; or the Veteran’s presence at certain specified additional locations. See 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed “radiogenic” diseases found five years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(c) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311(b)(4). The third avenue of recovery is direct service connection. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 4, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. The Veteran generally contends that service connection for myelodysplastic syndrome is warranted. While the Veteran claims that myelodysplastic syndrome is the result of in-service herbicide exposure, the Board finds that myelodysplastic syndrome is presumptively the result of in-service exposure to ionizing radiation, as discussed below. Initially, the Board finds that the Veteran is currently diagnosed with myelodysplastic syndrome. See March 2015 private treatment record; April 2015 private treatment record. The Veteran was exposed to ionizing radiation during service. Military personnel records and service treatment records contain prolific evidence that the Veteran was continuously exposed to ionizing radiation during active service. See e.g. July 1978 service treatment record; December 1978 service treatment record; June 1980 service treatment record; July 1980 service treatment record (Statement of Radiation Exposure); DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation). Although myelodysplastic syndrome is not one of the presumptively service-connected diseases specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d)(2), leukemia is listed. As noted above, the Veteran is currently diagnosed with myelodysplastic syndrome, which is also known preleukemia. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1864 (31st ed. 2007). Because leukemia is presumptively associated with exposure to ionizing radiation, the Board finds that service connection for myelodysplastic syndrome (preleukemia) is warranted on a presumptive basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. REASONS FOR REMAND Service connection for macrocytic aplastic anemia, claimed as due to exposure to ionizing radiation and/or herbicide agents, is remanded. The Veteran generally asserts that macrocytic aplastic anemia is the result of exposure to herbicides during service in the Republic of Vietnam (Vietnam) from December 1970 to January 1971. As discussed above, the Veteran was also exposed to ionizing radiation during service. A March 1975 Report of Medical History indicates the Veteran sustained a knee injury in 1970 while serving in Vietnam. See also January 1981 military personnel record. While macrocytic aplastic anemia is not listed as a disease associated with exposure to herbicides under 38 C.F.R. § 3.309(e) or a disease associated with exposure to ionizing radiation under 38 C.F.R. § 3.309(d), service connection may still be established on a direct basis. As such, the Board finds that remand is necessary for a VA addendum opinion. The matter is REMANDED for the following action: Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the addendum opinions. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions: a. Is it at least as likely as not (i.e., probability of 50 percent) that in-service exposure to herbicides (Agent Orange) caused the current macrocytic aplastic anemia? In providing the reasons for the above opinion, the VA examiner should presume the Veteran was exposed to herbicide agents during service. The VA examiner should not use as a reason for the opinion that macrocytic aplastic anemia is not on VA’s herbicide presumptive service connection list (38 C.F.R. § 3.309(e)). b. Is it at least as likely as not (i.e., probability of 50 percent) that in-service exposure to ionizing radiation caused the current macrocytic aplastic anemia? In providing the reasons for the above opinion, the VA examiner should presume the Veteran was exposed to ionizing radiation during service. The VA examiner should not use as a reason for the opinion that macrocytic aplastic anemia is not on VA’s ionizing radiation presumptive service connection list (38 C.F.R. § 3.309(d)). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel