Citation Nr: 20029068 Decision Date: 04/27/20 Archive Date: 04/27/20 DOCKET NO. 18-20 095 DATE: April 27, 2020 ORDER Entitlement to service connection for myelodysplastic syndrome, to include as due to herbicide exposure, is denied. FINDING OF FACT The evidence of record is against finding that the Veteran’s myelodysplastic syndrome occurred in, or is the result of, his period of active duty service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for myelodysplastic syndrome, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1959 to January 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran unfortunately passed away in December 2018. In a January 2019 decision, the Board dismissed the instant claim unless and until a valid substitution or accrued benefits claim was filed. The Appellant—the Veteran’s surviving spouse—filed an application for substitution, which VA accepted and approved. See October 30, 2019, Appeal Substitution Review. Thus, the Appellant now stands in the shoes of the Veteran for purposes of completing this claim. At the time of the Veteran’s death, he also had outstanding claims for a number of other issues. See March 16, 2020, Statement of the Case. The Appellant timely filed a VA Form 9, requesting a Board hearing by live videoconference. Thus, those claims will be addressed in a future decision after the Appellant has been afforded the opportunity to be heard. With respect to this claim, however, the Veteran originally was scheduled for a hearing on August 20, 2018. That hearing was postponed until November 14, 2018, and again until December 4, 2018. The Veteran failed to appear at the most recent rescheduled date and never filed a motion for a new hearing, laying out good cause why a new hearing should be permitted. Thus, the Veteran’s hearing request is deemed withdrawn. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street); 38 C.F.R. § 20.603(d). The Veteran alleged, prior to his death, that his myelodysplastic syndrome should be presumptively service connected to his exposure to Agent Orange. See May 8, 2017, Notice of Disagreement (NOD). To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962, to May 7, 1975, or following service in a unit that operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied at any time during the period from April 1, 1968, to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(i)–(iv), 3.309(e). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Service treatment records do not contain complaints of, treatment for, or diagnosis of myelodysplastic syndrome. Post-service private treatment records from August 2016 show that the Veteran was diagnosed with myelodysplastic syndrome. A September 2017 VA medical opinion also is of record, which, in pertinent part, states the following: [The Veteran] also has Monoclonal Gammopathy of Uncertain significance, which may someday develop into Myeloma, which is a B cell malignancy that may be related to agent orange. If it does, that would suggest need for compensation, but it has not at this time. The question that was asked me is: “Does the Veteran have a diagnosis of (a) myelodysplastic syndrome that is a sub category of non-Hodgkin’s lymphoma caused by herbicide exposure?” The patient does have a documented myelodysplasia but this is a myeloid disorder and not a B cell disorder. It is not a sub category of non-Hodgkin’s Lymphoma. There is no clear evidence in the medical literature that this disorder was related to his herbicide exposure during his active duty or to any other related active duty events. The Board recognizes that the Veteran suffered from myelodysplasia. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). As the VA examiner explained, however, this condition neither is a non-Hodgkin’s Lymphoma nor a B-cell disorder. Thus, it is not a condition for which service connection based on a presumption of herbicide exposure exists. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). An inability to qualify for presumptive service connection, however, does not preclude the Appellant from proving that the Veteran’s condition was related to herbicides, assuming exposure to herbicides can be substantiated. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning back to the principles of direct service connection, the Veteran’s military personnel records (MPRs), as well as various decorations (Vietnam Campaign Medal, Combat Action Ribbon, etc.) show that the Veteran served in Vietnam. Thus, the Board will presume he was exposed to herbicides, satisfying the second element of service connection. See 38 U.S.C. § 1116(f); See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Turning to the third element of service connection, the Board finds that the evidence of record is insufficient. The VA examiner stated that there currently is no medical literature to support the theory that the Veteran’s condition is related to herbicide exposure. While the Veteran did, and the Appellant may, allege that the Veteran’s condition is related to herbicide exposure, the Veteran was not, and the Appellant is not, competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The VA examiner’s opinion is uncontradicted by any of the remaining competent and credible evidence of record, and the Board affords it considerable probative value on appeal. Thus, the Board finds that the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Appellant’s claim for entitlement to service connection for myelodysplastic syndrome, the Appellant’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Appellant a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.