Citation Nr: 21070257
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 20-01 398
DATE: November 23, 2021

ORDER

Entitlement to service connection for myelodysplastic syndrome is granted.

FINDING OF FACT

Resolving reasonable doubt in the appellant's favor, the Veteran's myelodysplastic syndrome is at least as likely as not related to in-service injury, event, or disease.

CONCLUSION OF LAW

Resolving reasonable doubt in the appellant's favor, the criteria for service connection for myelodysplastic syndrome are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty, including from August 1954 to August 1957, August 1957 to August 1960, and from August 1961 to August 1963.  The Veteran died in August 2016.  The Veteran's wife is his substituted appellant.  

This matter is on appeal from a July 2017 rating decision.  At that time, the Regional Office (RO) granted service connection for cause of the Veteran's death due to presumed chemical exposure at Camp Lejeune.  It noted that service connection for acute leukemia and myelodysplastic syndrome had been presumed, effective March 14, 2017 (the date the law making those disorders to warrant presumptive service connection became effective).  The RO also denied service connection for myelodysplastic syndrome.  The Board notes that the RO has also confusingly adjudicated the issue as entitlement to accrued benefits.  The Board is considering this matter as one for entitlement to service connection, for which the appellant is the substituted appellant.  The appellant is not prejudiced by this characterization as it allows for less restrictive legal requirements than an accrued benefits claim.

In November 2021, the appellant had a hearing before the undersigned Veterans Law Judge.

Entitlement to service connection for myelodysplastic syndrome.  

The appellant contends that the Veteran's myelodysplastic syndrome developed due to exposure to contaminants in the water supply while he was stationed at Camp Lejeune.

In the July 2017 rating decision, the RO conceded the claimed exposure at Camp Lejeune.

Prior to his death, the Veteran had a diagnosis of myelodysplastic syndrome.  For example, his August 2016 death certificate noted that it was a cause of death.  As such, the question before the Board is whether it is etiologically related to service.  

As noted in the July 2017 rating decision, service connection for myelodysplastic syndrome had been presumed, effective March 14, 2017.  March 14, 2017 is the date that regulations added myelodysplastic syndrome to the list of disorders for which VA finds presumptive service connection warranted for certain diseases associated with exposure to contaminants in the water supply at Camp Lejeune.  82 Fed. Reg. 4,173 (January 13, 2017).  As such, service connection cannot be granted based on a presumptive service connection basis prior to the date of the law allowing such a grant came into effect.

However, an appellant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994).

A January 2016 VA medical opinion found that it was less likely than not that the Veteran's myelodysplastic syndrome was attributable to his service at Camp Lejeune given his other risk factors.  The appellant has submitted a private medical opinion in May 2018, dated in November 2015, from an oncologist that indicated that the myelodysplastic syndrome was possibly related to contaminated water at Camp Lejeune.  

Given the unique circumstances of this case, to include positive medical evidence of direct service connection, and resolving reasonable doubt in favor of the appellant, the Board finds that the Veteran's myelodysplastic syndrome is due to in-service exposure to contaminants in the water supply at Camp Lejeune.  Service connection for myelodysplastic syndrome is warranted.

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Lindio

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.