Citation Nr: 21071809 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-07 321 DATE: December 1, 2021 ORDER Entitlement to service connection for myelodysplasia is denied. REFERRED The issue of entitlement to service connection for Type II diabetes mellitus is referred to the Agency of Original Jurisdiction (AOJ). A review of the Veteran's medical record shows a diagnosis of Type II diabetes mellitus. See, e.g., January 2018, Coatesville VAMC, Primary Care Outpatient Note. Exposure to certain herbicide agents, including Agent Orange, has been conceded for this Veteran. Furthermore, Type II diabetes mellitus is listed in 38 C.F.R. § 3.309 as one of the diseases associated with exposure to herbicide agents. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's myelodysplasia began in active service or is otherwise related to an in-service injury or disease, including as due to exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for myelodysplasia have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This issue was previously before the Board in April 2019, and was remanded for further development, which has been completed. Entitlement to service connection for myelodysplasia. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though 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: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309(e). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange, is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran contends that his myelodysplasia is due to exposure to herbicide agents during active service in Vietnam. Service records indicate that he served in Vietnam from July 1970 to May 1971. As such, exposure to certain herbicide agents, including Agent Orange, has been conceded. The record shows that the Veteran has a current diagnosis of myelodysplasia. See October 2017 Progress Notes. As an initial matter, the Board notes that myelodysplasia is not among the list of diseases presumptively associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.307(a)(6). Accordingly, the presumption of service connection based on exposure to herbicide agents is not applicable for myelodysplasia. As discussed above, the Veteran may nevertheless show entitlement to service connection for myelodysplasia on a direct basis, including as due to herbicide exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran was provided a VA examination for his myelodysplasia in November 2019. The examiner opined that the etiology of myelodysplasia for this Veteran is unknown. In this case, the examiner was unable to substantiate that his current diagnosis of myelodysplasia is related to his time in service based upon scientific literature and documentation in the Veteran's file. The examiner also noted that myelodysplasia is not one of the presumptive conditions for Agent Orange exposure. Reviewing the post-service evidence, the examiner noted that the Veteran did not work in any environmentally hazardous conditions. Unfortunately, the only opinions and rationales of record are from the November 2019 VA examination. However, the lack of evidence and an unknown etiology does not construe the evidence in favor of the Veteran's claim. The service records, post-service records, and the medical opinion all provide evidence against this claim, indicating a problem that began many years after service. It is important for the Veteran to understand that the above medical findings cannot provide a basis to show that the Veteran's myelodysplasia is at least as likely as not due to his exposure to herbicide agents. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran's assertions as to a relationship between his myelodysplasia and service are of little probative value. The Board also acknowledges the Veteran's concerns regarding his herbicide exposure and other service-connected conditions due to herbicide exposure. Specifically, the Veteran believes the VA has failed to consider the pattern of conditions affecting him as evidence of exposure to herbicides. See January 2018 VA Form 9. The Veteran's exposure occurred many years ago and prior to widespread knowledge of the dangers of herbicide exposure. In consideration of these difficulties, the regulations in place provide service connection on a presumptive basis for many conditions associated with herbicide exposure. Unfortunately, as discussed above, myelodysplasia is not currently included on the list of diseases presumptively associated with exposure to certain herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Here, there is no competent evidence of myelodysplasia in service or within one year following discharge from service. Rather, the record indicates that the Veteran's symptoms of myelodysplasia occurred only in the fall of 2013. Moreover, there is no competent and probative evidence that his current conditions are related to active service, including as due to exposure to herbicide agents on a direct basis. Based on the reasons and bases discussed, the Board finds that the preponderance of the evidence is against the claim for service connection for myelodysplasia. Accordingly, the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.