Citation Nr: 21006202 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-31 724 DATE: February 3, 2021 ORDER Entitlement to service connection for myelodysplastic syndrome (MDS) due to herbicide exposure is granted. FINDING OF FACT It is at least as likely as not the Veteran’s MDS is related to his military service, including especially to his presumed exposure to herbicides. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for MDS. 38 U.S.C. §§ 1110, 1116, 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 July 1968 to July 1971. This appeal to the Board of Veterans' Appeals (Board) is from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was denied by the Board in May 2015. The Veteran appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In April 2020, the parties filed a Joint Motion for Remand (JMR), which the Court granted in an Order that same month, vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication in compliance with directives specified. To comply with agreement in the JMR, the Board, in turn, remanded this claim back to the RO in September 2020 for additional medical comment (an addendum opinion) concerning the etiology of the Veteran’s MDS – including especially in terms of whether related or attributable to his conceded exposure to herbicides and to address an October 2016 statement from his private hematologist. The RO completed that additional development but continued to deny the claim, so it was recertified to the Board in January 2021. Entitlement to service connection for MDS, including due to exposure to herbicides (particularly the dioxin in Agent Orange) The Veteran primarily attributes his MDS to exposure to herbicides while stationed in the Republic of Vietnam. And, as will be discussed, it is at least as likely as not that exposure to the herbicides (particularly the dioxin in Agent Orange) caused or eventually led to him developing MDS. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 (i.e., during the Vietnam era), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that certain diseases are presumptively associated with exposure to herbicides. 38 C.F.R. § 3.309(e). There is no disputing the Veteran served in the Republic of Vietnam during the designated period, so it is presumed he was exposed to herbicides while there. It also is shown he has the required diagnosis of MDS, although MDS is not amongst the diseases presumed to be the result of exposure to herbicides. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Nevertheless, in this circumstance, the Veteran still may establish his entitlement to service connection by showing direct causation, i.e., with probative evidence directly linking his MDS to his service and particularly to his presumed exposure to herbicides (including the dioxin in Agent Orange) while in Vietnam. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Currently, there are four medical statements on record addressing this posited causal relationship (“nexus”) between the Veteran’s MDS and his presumed exposure to herbicides in Vietnam. Two of the statements were authored by the Veteran’s treating hematologist, Dr. Ayash, who is the Chief, Division of Hematology/Oncology at Wayne State University and medical director at the Karamos Cancer Institute at the Detroit Medical Center. Her statements in April and October 2016 asserted that the Veteran has no other risk factors for the development of MDS besides his exposure to the carcinogens, dioxins, and benzene from the herbicide Agent Orange. She cited studies from multiple sources establishing dioxins as harmful, and then studies from the Institute of Medicine (IOM) and other “case-controlled studies” showing a higher incidence of MDS in those working in agriculture (in other words, those exposed to herbicides), and in petrochemical industries (those individuals regularly exposed to chemicals generally). Citing these studies and the Veteran’s specific lack of risk factors, she opined that it is just as likely as not that his MDS was caused by his Agent Orange exposure during his military service.   Conversely, there also are two VA medical opinions finding no nexus between MDS and herbicide exposure, but both of which are inadequate or certainly no more probative than the supporting statements from the Veteran’s treating hematologist, Dr. Ayash. In April 2020, in the granting the JMR, the CAVC determined that the July 2016 VA medical opinion, on which the Board had relied when denying this claim in May 2015, was inconsistent with Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). Briefly, Polovick had held that finding no nexus in a claim and basing that finding solely on a statistical analysis not supporting presumptive service connection, permits the denial of direct service connection only because there is no presumptive service connection. This is inadequate reasoning and violates Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[t]he existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences [NAS] recognizes a positive association."). In granting the JMR, the CAVC found that the July 2016 medical opinion had denied service connection for MDS solely because the 2014 Agent Orange Update from the Institute of Medicine (IOM) did not conclude that MDS is a disease presumptively associated with exposure to Agent Orange. Accordingly, the CAVC remanded the claim back to the Board, and the Board, in turn, remanded it back to the RO with direction to specifically address Dr. Ayash’s October 2016 supporting opinion. The resulting addendum opinion since obtained in November 2020 did not address Dr. Ayash’s October 2016 opinion. The opining provider did not cite any information specific to the Veteran. Rather, the examiner cited the 2018 Agent Orange Update from the Health and Medicine Division (HMD) (formally the IOM) of the National Academy of Sciences. The 2018 Update found no causal relationship between Agent Orange and MDS, identified as a disease of the blood cells and bone marrow. It found that research revealed a lack of studies on the topic, leading HMD to conclude there was inadequate or insufficient evidence of an association between them. So, apparently again, the disassociation of the MDS from the Veteran’s service seems to continue to be predicated on there not being a presumptive association. As such, this case presents conflicting medical opinions that the Board must evaluate and determine their relative ultimate probative value. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a provider provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, all opinions were provided by medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. However, the October 2016 medical opinion was provided by a specialist hematologist working in oncology, who was also the Veteran’s treating provider. That said, there is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a Veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Although her initial April 2016 statement did not provide sufficient explanation, her subsequent October 2016 supplemental statement did and cited medical sources and circumstances specific to the Veteran in providing sufficient explanation as to why his MDS is at least as likely as not due to his presumed exposure to herbicides in Vietnam. Thus, Dr. Ayash’s supporting statements – certainly in combination, provide the required level of explanation or rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).   In comparison, the November 2020 opinion is inadequate since, as mentioned, it failed to comply with the Board’s September 2020 remand instructions and again violated Polovick by denying service connection only because there is no presumptive service connection established by HMD, formerly IOM. Although the examiner copied portions of the 2018 Update into the examination report, rather than offering an unqualified statement, there was still no indication that the examiner considered the Veteran’s records or any information outside the HMD’s statistical analysis not supporting presumptive service connection. An inadequate medical opinion cannot provide the basis for a denial of service connection. Moreover, if it were adequate, it still would have been less probative than Dr. Ayash’s opinions – or certainly no more probative than her opinions, because the VA examiner did not cite any information specific to the Veteran’s case and relied solely on HMD’s 2018 Agent Orange Update to deny service connection. The Veteran’s counsel filed a brief in December 2020 recognizing these inadequacies and accordingly requesting a new medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). But, since the Board is finding the relative balance of opinion for versus against the claim, based on the existing evidence of record, still more medical comment is not needed since, as mentioned, in this circumstance this reasonable doubt is resolved in the Veteran’s favor and the claim granted rather than conversely denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).   Therefore, service connection for MDS due to herbicide exposure is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.