Citation Nr: 21041304 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-21 954 DATE: July 8, 2021 ORDER Entitlement to service connection for myelodysplastic syndrome is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need of regular aid and attendance or at the housebound rate is remanded. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) due to myelodysplastic syndrome is remanded. FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, myelodysplastic syndrome is causally related to the Veteran's exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for myelodysplastic syndrome are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969, to include service in the Republic of Vietnam from February 1967 to February 1968. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this matter in June 2019 for further development. With respect to the issue decided herein, the Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for myelodysplastic syndrome The Veteran is seeking service connection for myelodysplastic syndrome. Essentially, the Veteran asserts that his myelodysplastic syndrome is directly related to herbicide exposure in service. The Veteran's service records show that the Veteran served in the Republic of Vietnam during the applicable time period beginning on January 9, 1962 and ending on May 7, 1975. He is therefore presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116 (f). Private medical records show that he was diagnosed with myelodysplastic syndrome in 2013. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions even if there is no record of such disease during service. 38 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). However, myelodysplastic syndrome is not one such disease. Although myelodysplastic syndrome is not one of the presumptive diseases presumed due to herbicide exposure under 38 C.F.R. § 3.309 (e), the United States Court of Appeals for the Federal Circuit has determined that a veteran is not precluded from establishing service connection with proof of actual direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Initially, the Board observes that service treatment records are silent with respect to any symptoms associated with myelodysplastic syndrome. Further, there is no evidence of myelodysplastic syndrome within one year of the Veteran's discharge. There is also no medical evidence linking any current cancer disability to service, except in relation to exposure to herbicides. Significantly, the Veteran has not asserted that his current cancer is in anyway otherwise related to service except due to exposure to herbicides. Moreover, again, myelodysplastic syndrome is not presumed due to herbicide exposure under the applicable regulations. Therefore, the primary question in this case is whether the Veteran's myelodysplastic syndrome is directly related to exposure to herbicides. The Board previously remanded this matter for a VA examination and opinion. Initially, the April 2021 VA examiner found that the Veteran's myelodysplastic syndrome was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that myelodysplastic syndrome is not a condition listed on the Agent Orange presumptive list. Based on medical record review, myelodysplastic syndrome is less likely than not incurred in and/or caused by the claimed in-service injury, event, or illness including in-service exposure to Agent Orange, whether or not initially demonstrated in service or within one year after service. Importantly, the United States Court of Appeals for Veterans Claims (Court) has held, in the context of an opinion considering the issue of herbicide agent exposure, that "a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face." See Stefl v. Nicholson, 21 Vet. App. 120 (2007). As such, this opinion was found to be inadequate and another opinion was obtained. In a subsequent April 2021 addendum opinion, the same examiner observed that myelodysplastic syndrome is caused by genetic changes from an inherited predisposition, or from damage to a cell's DNA ( a somatic mutation) caused by exposure to chemotherapy, radiation, viral infection, or certain chemicals (e.g., benzene). Agent Orange is known to contain benzene rings. The VA has conceded that the Veteran had service in the Republic of Vietnam and exposure to herbicides is presumed. Therefore, based on medical record review, the myelodysplastic syndrome is at least as likely as not incurred in and/or caused by in-service injury, event, or disease, including in-service exposure to Agent Orange. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). After reviewing the totality of the medical evidence and resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for myelodysplastic syndrome is warranted. The record includes a probative VA opinion done by a medical professional that links the Veteran's myelodysplastic syndrome to his exposure to herbicides. In turn, service connection is warranted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to SMC based on the need of regular aid and attendance or at the housebound rate is remanded. This matter was previously remanded for VA examination with opinion. The initial August 2020 VA examination found that the Veteran was in need of aid and attendance due to nonservice-connected disabilities. However, as the examiner failed to address the Veteran's service-connected disabilities, an addendum opinion was obtained. The April 2021 VA examiner found that it is less likely than not that the Veteran needs regular aid and attendance due to service connected conditions. However, the only rationale provided was that there is no evidence in medical records that indicate that the Veteran requires the need for aid and attendance for coronary artery disease (CAD) or posttraumatic stress disorder (PTSD). However, the Board finds that this opinion is inadequate. In this regard, the Veteran's has been awarded a total maximum rating for his CAD, which is indicative of pretty severe functional impairment. Moreover, the examiner noted that the July 2015 VA examiner for the heart was unable to determine percent of MET attributable to each medical condition. However, the Court had held that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, then 38 C.F.R. § 3.102, which requires the Board to employ reasonable doubt, dictates that such signs and symptoms be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Thus, such functional impairment should be attributed to the Veteran's CAD. Moreover, the Veteran has reported that the medications he takes for his PTSD have many side effects, which affect his ability to perform his activities of daily living without assistance. Again, the examiner failed to discuss this assertion as well as the functional impairments caused by the Veteran's PTSD. Further, the Veteran is now service-connected for myelodysplastic syndrome and thus, an examination is needed to address whether such disability required the need of regular aid and attendance of another person. Accordingly, the Board finds that another VA examination is necessary. In light of the need to remand, additional VA clinical records should be obtained. Entitlement to a TDIU due to myelodysplastic syndrome is remanded. The Board previously found that this issue was before the Board as the Veteran's representative had raised it during the November 2018 hearing as part and parcel of the claims for coronary artery disease and myelodysplastic syndrome. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). However, the agency of original jurisdiction determined that this matter was rendered moot as the Veteran has been awarded a maximum 100 percent disability rating for his service-connected coronary artery disease from May 29, 2015, the date of award of service connection. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114 (s). Thus, under Bradley, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. Accordingly, as the Veteran has not been awarded SMC, the issue of entitlement to a TDIU due to the Veteran's now service-connected myelodysplastic syndrome is still on appeal. Given the award of service connection herein, if the Veteran does not meet the criteria for SMC based on the need of regular aid and attendance, an opinion is needed to address the functional impairment caused by the Veteran's myelodysplastic syndrome on his ability to work. The matters are REMANDED for the following action: 1. Additional VA clinical records dated from July 2020 to the present should be obtained. 2. Schedule the Veteran for an appropriate VA medical examination to determine the need for special monthly compensation based on the need for regular aid and attendance due to his service-connected disabilities. The electronic claims file should be made available to and reviewed by the examiner. The examiner must opine whether the Veteran has a permanent need for regular aid and attendance due to his service-connected disabilities. The examiner should determine whether, as a result of the service connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress himself, or keep himself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed himself due to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect herself from the hazards or dangers incident to his daily environment. All functional impairments caused by the service-connected disorders should be clearly reported. If the examiner finds that the need of regular aid and attendance due to the Veterans service-connected disabilities is not needed, the examiner should identify any symptoms and functional impairments due to service-connected myelodysplastic syndrome and discuss the effect of the Veteran's myelodysplastic syndrome on any occupational functioning and activities of daily living. A detailed rationale for all opinions expressed should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.