Citation Nr: 21027659 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 20-19 397 DATE: May 6, 2021 ORDER Entitlement to service connection for myelodysplastic syndrome is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence shows that his myelodysplastic syndrome is etiologically related to his service. CONCLUSION OF LAW The criteria for service connection for myelodysplastic syndrome have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1965 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Entitlement to service connection for myelodysplastic syndrome The Veteran contends he suffers from myelodysplastic syndrome due to service, specifically due to Agent Orange exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962, and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The evidence confirms that the Veteran served in Vietnam. Accordingly, exposure to herbicides in service is conceded. However, VA determined that the presumption is not warranted for any condition other than those for which VA has found a positive association between the condition and such exposure. Nevertheless, the Veteran can still receive service connection for a disability on a direct basis if the service connection elements are otherwise met. The Veteran has been diagnosed with myelodysplastic syndrome, which has not been presumptively associated with exposure to herbicide agents. STRs are void for evidence of a hematologic condition, to include myelodysplastic syndrome. In April 2018, the Veteran underwent an examination and was diagnosed with myelodysplastic syndrome, as well as anemia and hairy cell or other b-cell leukemia. In September 2018, the Veteran underwent an examination and was diagnosed with myelodysplastic syndrome, with a note he was first diagnosed with this condition in 2012. The examiner stated that the Veteran's myelodysplastic syndrome is not caused by or aggravated by exposure to Agent Orange. The rationale provided was the etiology of this condition is not completely understood, but is thought to be due to a genetic mutation and not herbicide exposure according to an article in UptoDate by Jon C. Aster, MD, and Richard M. Stone, MD, entitled "Clinical manifestation and Diagnosis of the Myelodysplastic Syndrome," Aug. 2018. In November 2019, a private medical opinion was rendered by Dr. M. J. Dr. J. noted the Veteran served in Vietnam. In 2012, the Veteran was found to be anemic, and underwent a bone marrow biopsy in August 2012, that demonstrated refractory anemia with ringed sideroblasts. He was followed and eventually required treatment and was treated with darbepoetin beginning in October 2016, and then with filgrastim in February 2017. He received transfusions every 4 weeks and was given a trial for lenalidomide with darbepoetin in April 2016. He was placed on danazol in August 2017. The private treating hematologist explained that Agent Orange is a dioxin-associated substance that has been associated with a variety of different cancers. The clinician noted that the product contains benzene and various derivates of polycyclic aromatic hydrocarbons that are highly carcinogenic, and benzene has been associated with the development of various blood disorders including myelodysplastic syndrome (MDS). The clinician further noted that one of the limitations in the state of science is the fact that MDS was not allowed through the US Cancer Surveillance System until after the 1990s and therefore in 1994 when the National Academy of Science published an exhaustive report on the health effects of Agent Orange, they did not include myelodysplastic syndrome. They did make the statement that Agent Orange has been shown to have a wide range of effects on animals, and it has shown to cause cancer at a variety of sites. The private clinician opined that because myelodysplastic syndrome was not recognized as cancer in the US until the 2000s. Further, the link between Agent Orange and myelodysplastic syndrome had not been studied even though it is was plausible based on the fact that the constituents of Agent Orange have been shown to increase the risk of myelodysplastic syndrome in other settings. Dr. J. concluded it is more likely than not that the Veteran' agent orange exposure increased his risk of developing myelodysplastic syndrome. At the Board hearing he testified to experiencing herbicide exposure during his tour in Vietnam, which he related to his current diagnosis of myelodysplastic syndrome. The Veteran has consistently reported suffering from myelodysplastic syndrome that originated during his time in service. Dr. J. rendered a positive medical opinion linking his myelodysplastic syndrome to herbicide exposure during service, and provided a lengthy rational explaining the correlation. There are positive and negative opinions of recordboth of which are from competent and credible clinicians and included a detailed rationale. The evidence is in equipoise and all reasonable doubt is resolved in the Veteran's favor. Service connection for myelodysplastic syndrome is granted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.