Citation Nr: 21021788 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-20 998 DATE: April 14, 2021 ORDER Entitlement to service connection for myelodysplasia syndrome is denied. FINDING OF FACT The Veteran does not have a diagnosis of myelodysplasia syndrome. CONCLUSION OF LAW The criteria for service connection for myelodysplasia syndrome have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to April 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision of a Regional Office (RO) for Department of Veterans Affairs (VA). This matter was previously before the Board in May 2020, when it was remanded for additional development. The case has now been returned to the Board for further appellate action. Entitlement to service connection for myelodysplasia syndrome The Veteran contends that his myelodysplasia syndrome (MDS) is a result of exposure to herbicide agents during his service in Vietnam. Direct service connection requires competent evidence of a current disability, a precipitating in-service event, and a causal connection between such an event and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, “[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in... Vietnam” during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019) (quotation marks omitted). Initially, the phrase “service in the Republic of Vietnam” meant service only on Vietnam’s landmass and inland waterways. Effective January 29, 2019, the meaning of this phrase was expanded to encompass service within Vietnam’s 12-nautical-mile territorial sea. Id. Assuming a Veteran establishes that, during the Vietnam era, (s)he served in Vietnam within the parameters set forth in Procopio, VA regulations allow him/her to obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303 (d). Specifically, 38 C.F.R. § 3.307 provides that a Veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307 (a)(6)(iii). The Board notes that the Veteran’s service records show that he served in the Republic of Vietnam, and as such, he is presumed to have been exposed to herbicide agents, including Agent Orange. See 38 U.S.C. § 1116 (f), 38 C.F.R. § 3.307 (a). However, service connection for the Veteran’s myelodysplasia syndrome cannot be awarded based on a theory of presumptive exposure to tactical herbicides because this particular disability is not one of the enumerated chronic diseases amenable to a presumptive service connection under 38 C.F.R. § 3.309 (e). Despite the foregoing, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). At present, the probative medical evidence of record does not show a current myelodysplasia syndrome (MDS) diagnosis. A June 2005 private treatment record indicates that a bone marrow biopsy suggested the possibility of early MDS. No formal diagnosis was made at the time. A March 2006 private treatment record noted possible mild dysplastic syndrome, detailing the Veteran’s history of anemia since 2004, gastrointestinal (GI) workup negative for bleeding, and the June 2005 bone marrow biopsy with results suggesting early myeloproliferative or MDS. No formal diagnosis was made, and the physician stated that he questioned the diagnosis of MDS. Instead, he attributed the Veteran’s symptoms to his alcohol, caffeine, and nicotine intake. The physician stated that, after the Veteran cut down on nicotine, caffeine, and alcohol, his hemoglobin would be reassessed to consider doing another biopsy. A May 2006 private treatment record indicated the Veteran’s improved eating habits and decreased coffee and alcohol intake. The Veteran’s complete blood count (CBC) was noted to be “completely stable.” Diagnoses listed anemia with potential MDS. Again, no formal diagnosis of MDS was made. A June 2006 private treatment record also noted that the Veteran has been off all red cell growth factors for three months and the physician found that he did not need them any longer. The physician also questioned whether the Veteran had MDS at all. An August 2006 private treatment record indicates that the Veteran has been off growth factor for five months and his CBC shows “a complete normalization of his red cells.” The physician reported that he was concerned with the MDS diagnosis in the Veteran’s records and scheduled a bone marrow biopsy in two weeks to hopefully reverse the diagnosis. In an August 2006 private treatment record, the Veteran’s bone marrow biopsy was conducted to determine any current MDS. A September 2006 private treatment record indicated the results of the Veteran’s biopsy, showing “completely normal” bone marrow and chromosome analysis. The diagnosis of MDS was noted to be no longer a consideration. A June 2007 private treatment record noted that the Veteran’s CBC was still completely normal and his prior diagnosis of MDS was incorrect. The hematologist discharged the Veteran from his care. The Veteran was afforded a VA examination in July 2013. The VA examiner noted diagnoses of MDS, and refractory anemia associated with MDS. The Veteran reported that, in 2003, abnormal bloodwork showed anemia and bone marrow biopsies in 2006 showed MDS. The VA examiner noted that the Veteran’s condition does not require continuous medication. The VA examiner reported that the Veteran’s disability impacts his ability to work, resulting in fatigue upon doing physical work. No etiology opinion was provided. A July 2018 VA treatment record notes no actual documented pathology report of MDS with no cytogenetic analysis to suggest a diagnosis. Furthermore, the Veteran’s hemoglobin count has been above ten for over ten years, also going against an MDS diagnosis. A December 2018 VA treatment record shows a hematology follow up note noting a prior diagnosis of MDS which has been refuted. Since the Veteran’s last visit, his notes were reviewed by VA pathology who saw no evidence of MDS on three bone marrows with normal karyotype. In accordance with the May 2020 Board remand, an addendum medical opinion was provided in August 2020. Following a review of the Veteran’s medical records, the VA examiner opined that the Veteran’s MDS is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA examiner stated that the Veteran’s available medical records fail to find that the Veteran actually has an established clinical diagnosis of MDS at the current time. The VA examiner noted the July 2013 VA examiner’s report of a MDS diagnosis but reasoned that the previous examiner misrepresented the biopsy quoted, and did not indicate that the actual report stated “the findings are not diagnostic, they do suggest the possibility of early myeloproliferative/myelodysplastic disorder.” The VA examiner further stated that the biopsy was reevaluated and found to not be consistent with MDS and that the previous examiner either did not review and certainly did not report that the final conclusion made in August 2006 by the hematologist was that there was no evidence of MDS. Thus, the VA examiner concluded that the Veteran does not have a current diagnosis of MDS. After a review of the probative medical evidence of record, the Board finds that the Veteran does not have a current diagnosis of MDS. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; see also Brammer, 3 Vet. App. at 225 (1992). The Board acknowledges the Veteran’s contentions that he has MDS, attributed to Agent Orange exposure. However, the Veteran’s statements alone are not sufficient to constitute a current diagnosis. The Veteran is competent to describe symptoms he has experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the diagnosis of MDS is a complex condition which the Veteran in this case is not competent to address due to his lack of medical training and/or expertise. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes the July 2013 VA examination showing a diagnosis of MDS. However, all other probative medical evidence of record shows that the Veteran does not have an MDS diagnosis, including the Veteran’s private treatment records, VA treatment records, and August 2020 VA examination. Without objective evidence of MDS during the appeal period, the claim must be denied. The Board finds the most probative evidence of record does not support the Veteran’s claim of MDS. The preponderance of the evidence is against his claim for service connection for MDS. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.