Citation Nr: 21007211 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-33 128 DATE: February 9, 2021 ORDER The appeal for entitlement to service connection for lung cancer, as due to exposure to herbicide agents, is dismissed. Service connection for myelodysplastic or myeloproliferative neoplasm, as due to exposure to herbicide agents, is granted. Service connection for strokes or residuals of strokes, as secondary to myelodysplastic or myeloproliferative neoplasm, is granted. REMANDED Entitlement to service connection for a kidney condition, as secondary to myelodysplastic or myeloproliferative neoplasm, is remanded. FINDINGS OF FACT 1. At the September 2020 Board hearing, prior to the promulgation of a Board decision, the Appellant requested withdrawal of the appeal with respect to the issue of service connection for lung cancer, as due to exposure to herbicide agents. 2. The Veteran had verified service in Republic of Vietnam and is presumed to be exposed to herbicide agents during service. 3. The Veteran’s myelodysplastic or myeloproliferative neoplasm was at least as likely as not related to his presumed exposure to herbicide agents in service. 4. The Veteran’s strokes or residuals thereof are proximately due to his myelodysplastic or myeloproliferative neoplasm condition. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for lung cancer, as due to exposure to herbicide agents, by the Appellant, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for myelodysplastic or myeloproliferative neoplasm, as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3. The criteria for entitlement to service connection for strokes or residuals of strokes, as secondary to myelodysplastic or myeloproliferative neoplasm, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to June 1967, which included service in the Republic of Vietnam (Vietnam). He died in December 2017. The Appellant is his surviving spouse and has been substituted in this appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant and a witness, C.T., presented sworn testimony at a hearing before the undersigned in September 2020. The Appellant submitted additional relevant evidence after the issuance of the statement of the case (SOC) without waiver of Agency of Original Jurisdiction review. However, as the Board is granting service connection for myelodysplastic or myeloproliferative neoplasm, there is no prejudice to the Appellant. Withdrawn Appeal 1. Entitlement to service connection for lung cancer, as due to exposure to herbicide agents. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). In the present case, the Appellant, at the hearing before the undersigned, testified her wish to withdraw the issue of service connection for lung cancer, as due to exposure to herbicide agents. When asked by the undersigned whether the Appellant fully understood the consequences of such action, she answered in the affirmative. Hence, there remains no allegations of errors of fact or law for appellate consideration, as the oral withdrawal met the requisite criteria noted in the preceding paragraph. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.   Service Connection Establishing service connection generally requires 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). A veteran who, during active service, served in 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, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability and includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 2. Entitlement to service connection for myelodysplastic or myeloproliferative neoplasm, as due to exposure to herbicide agents. The Board finds that service connection for myelodysplastic or myeloproliferative neoplasm is warranted. In this case, the evidence shows that the Veteran had myelodysplastic or myeloproliferative neoplasm during the appeal period. His service records show that he served in Vietnam during the Vietnam era, and as such, in-service exposure to Agent Orange has also been established. Thus, the first two elements have been met. Per VA regulations, there are listed conditions for which a positive association to Agent Orange exposure may be presumed. However, blood disorders, including myelodysplastic or myeloproliferative neoplasm, is not a presumptive condition for Agent Orange exposure. See 38 C.F.R. § 3.309(e). As such, a positive association between Agent Orange and myelodysplastic or myeloproliferative neoplasm may not be presumed. However, service connection may be established on a direct basis. See 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted, a current diagnosis and in-service event have been established. Thus, the remaining issue is a nexus opinion linking the Veteran’s myelodysplastic or myeloproliferative neoplasm to his in-service Agent Orange exposure. In addressing the issue of a nexus, there are both positive and negative medical opinions as to whether the Veteran’s myelodysplastic or myeloproliferative neoplasm was due to his presumed exposure to herbicide agents in service. The May 2015 VA medical opinion was against finding that the myelodysplastic or myeloproliferative neoplasm was due to the in-service Agent Orange exposure. After reviewing a January 2015 private opinion by Dr. Adams and its referenced 2012 study by the Institute of Medicine (IOM), the examiner found that this condition was “unclassifiable” and thus, it was not on the list of presumptive conditions related to exposure to Agent Orange. No further explanation was provided. In support of a positive nexus are private opinions that were received in January 2015, August 2015, October 2015, August 2017, and October 2020. In January 2015, Dr. Adams, the Veteran’s hematologist-oncologist (a specialist in blood disorders and cancers), provided a positive nexus opinion based on the 2012 IOM study listing hematologic malignancies under sufficient evidence of an association to exposure to Agent Orange. In the other opinions, Dr. Adams opined that it was at least as likely than not that the Veteran’s myelodysplastic or myeloproliferative neoplasm was related to his presumed exposure to Agent Orange. Dr. Adams noted that the myeloproliferative disorder was identified from specific molecular testing and based on a bone marrow biopsy that showed a myeloproliferative neoplasm with myelofibrosis (a type of blood cancer). He stated that his opinion was based on the fact that Agent Orange exposure has been linked to increased risk for hematologic malignancies and myeloproliferative neoplasms, and that the Veteran had been exposed to Agent Orange during service. In the June 2017 SOC, it was noted that myelodysplastic syndromes are listed under a separate heading of “Nonmalignant Myeloid Diseases” in the 2012 IOM study, and that section of the report indicated that Myelodysplastic Syndromes are not malignancies. Instead, it was determined that the study concludes that there is inadequate or insufficient evidence to determine whether there is an association between nonmalignant myeloid diseases and exposure to herbicide agents. Based on the above, the Board finds the private medical opinions more persuasive, as Dr. Adams is familiar with the Veteran’s history, since he was his treating physician, and a specialist in blood disorders and cancers. In contrast, the Board assigns little weight to the May 2015 VA medical opinion, as the examiner did not provide an adequate rationale for his negative finding. The Board has reviewed the findings in the June 2017 SOC, but still finds the private opinions more probative, as Dr. Adams provided an adequate explanation on hematologic malignancies and myeloproliferative neoplasms with myelofibrosis, in relation to the Veteran and his presumed exposure to Agent Orange. Thus, in light of the most probative evidence, the Board finds that a nexus has been established between the Veteran’s myelodysplastic or myeloproliferative neoplasm, and his presumed in-service Agent Orange exposure. Accordingly, as all three elements have been met, entitlement to service connection for myelodysplastic or myeloproliferative neoplasm, as due to exposure to herbicide agents, is granted. 3. Entitlement to service connection for strokes or residuals of strokes, as secondary to myelodysplastic or myeloproliferative neoplasm. The Veteran, and subsequently, the Appellant contends that his strokes, or residuals thereof, are secondary to his myelodysplastic or myeloproliferative neoplasm. The Veteran had strokes, which led to residuals during the appeal period. See February 2016 VA treatment record. The August 2015 and October 2020 private opinions opined that these stroke residuals are at least as likely as not proximately due to or the result of his myelodysplastic or myeloproliferative neoplasm. The Board has since found that service connection for myelodysplastic or myeloproliferative neoplasm was warranted. There is no evidence to rebut those findings. Therefore, because service connection for myelodysplastic or myeloproliferative neoplasm is granted, secondary service connection is also warranted for the associated condition. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS FOR REMAND Entitlement to service connection for a kidney condition, as secondary to myelodysplastic or myeloproliferative neoplasm, is remanded. The Veteran, and subsequently, the Appellant, assert that his kidney condition was due to his myelodysplastic or myeloproliferative neoplasm condition. See September 2020 Hearing Transcript at pages 8-9. During the appeal period, the Veteran was diagnosed with kidney insufficiency or with chronic kidney disease, and his death certificate noted end-stage renal disease as a contributing cause of death. See May 2017 CAPRI records; January 2018 death certificate. The Board has now found that service connection for myelodysplastic or myeloproliferative neoplasm, but there is no opinion of record that the kidney disease was proximately due to or aggravated by the service-connected condition. An opinion regarding the nature and etiology of the kidney condition should be obtained, as the Board cannot make a fully-informed decision on the issue. In addition, the Appellant testified that the Veteran sought treatment for his kidney condition with Dr. H. of the Idaho Physicians Clinic, which on review, appears that there are outstanding records that warrants a remand. The matter is REMANDED for the following actions: 1. Ask the Appellant to complete a VA Form 21-4142 for physician(s)/facility(ies) that treated the Veteran’s kidney condition, to specifically include Dr. H. 2. Obtain an opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s kidney condition. The examiner is asked to answer the following: Is it at least as likely as not that the Veteran’s kidney condition was proximately due to or aggravated beyond its natural progression by his service-connected myelodysplastic or myeloproliferative neoplasm condition? The examiner should recognize that this second question requires two opinions: one for proximate causation and another for aggravation. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the kidney condition prior to aggravation by the myelodysplastic or myeloproliferative neoplasm condition. A complete rationale must be provided for all opinions expressed. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.