Citation Nr: A21014808 Decision Date: 09/07/21 Archive Date: 09/07/21 DOCKET NO. 200419-83441 DATE: September 7, 2021 ORDER Service connection for myelodysplastic syndrome (MDS) is denied. FINDINGS OF FACT 1. The Veteran had active duty from February 1968 to January 1974, including service in Vietnam from July 1968 to November 1969. 2. The Veteran is presumed to have been exposed to herbicides; the current diagnosis of MDS is not one of the presumptive diseases associated with herbicide exposure, was not shown in service, was not shown for many years, and the medical evidence is not sufficient to support service connection on a direct basis. CONCLUSION OF LAW MDS was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The rating decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the AMA applies. In the April 2020 10182, the Veteran elected the Hearing docket. A hearing before the Board was held in April 2021. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of service connection for MDS, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The Veteran's primary contention is that herbicide agent exposure during active duty caused MDS. All potential theories of entitlement will be considered. Turning to the evidence, the first element of service connection a current disability is met, as private treatment records show he has been treated for MDS throughout the appeal period. Specifically, an April 2018 bone marrow biopsy showed evidence of MDS. As such, the first element is met. Next, the second element of direct service connection an in-service incurrence is also met. While the service treatment records (STRs) do not show treatment for, complaints of, or a diagnosis of MDS, his claim is predicated on herbicide agent exposure during service in Vietnam. This service has been shown by his military personnel records, and as such, to the extent of herbicide agent exposure in Vietnam, the second element is met. As to a medical nexus as it relates to direct service connection, MDS was not shown in service or for many years after separation. Further, the Veteran has not asserted that MDS started in service. Therefore, the medical evidence does not support service connection on a direct basis. As to presumptive service based on chronicity/continuity of symptomatology, MDS was not shown in service. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran separated from service in 1974 with no mention of MDS. Further, symptoms consistent with MDS were not shown until 2018, more than 40 years after discharge. As he was discharged in 1974 and symptoms were not identified until 2018, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. As noted, the Veteran separated from service in 1974 but did not note symptoms of MDS 2018. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, the medical evidence does not support presumptive service connection on the basis of chronicity/continuity of symptomatology. As to presumptive service connection based on herbicide exposure, MDS is not a presumptive disease related to herbicide agent exposure. Therefore, service connection on a presumptive exposure to herbicides is not warranted. As to service connection based on direct causation, in a February 2020 letter, a private oncologist noted that the Veteran had a diagnosis of MDS and a history of Agent Orange exposure. Further, he stated that MDS was clearly associated with environmental exposures, including exposure to benzene, a product use in Agent Orange, that the diagnosis was not just an anemia but a malignancy requiring chemotherapy, and that therefore this environmental exposure likely played a significant role in the development of the disease. The basis of the private physician's findings was that environmental exposures, including benzene, a product used in Agent Orange "likely played a significant role in the development of [MDS]." This statement is speculative and does not support the as likely as not standard legal standard. Further, while it is not clear that the opinion was from the Veteran's treating physician but assuming that it was, the clinician presumably reviewed the Veteran's medical records from his practice but offered no medical literature in support of the opinion or indicate that he had reviewed any current medical literature on the topic. Therefore, this opinion is not sufficient to support service connection. In a May 2020 "To whom it may concern" letter, a private academic hematology noted that he was frequently asked whether a diagnosis of MDS was potentially connected to a history of Agent Orange exposure. While the letter discussed how MDS could be caused by chemical exposures, the chemical components of Agent Orange, delayed onset of the disease, and was very detailed, it did not mention this Veteran by name or relate his specific diagnosis or risk factors. Rather, the letter, written essentially as a treatise, addressed the relationship between herbicide agent exposure and MDS but was focused on veterans' experiences generally, rather than this specific case. The clinician acknowledged that he had been asked to provide nexus letters for veterans but that the number of requests detracted from his active clinical and research work so he prepared a generalized letter to support the concept that MDS was as likely as not related to Agent Orange. (Parenthetically, this letter has been referenced and submitted in at least one other case before this judge). The Board finds that this medical evidence does not rise to the level of specificity to support service connection. While detailed in its scientific explanation, the clinician recognized that several potential environmental risk factors could lead to the development of MDS; however, as it was a generalized treatise, the information cannot be reasonably extrapolated to this Veteran. Rather, a reasonable reading of the letter indicates that the clinician was suggesting that MDS should be on the presumptive list of diseases associated with herbicide exposure; however, such a determination is beyond the scope of the Board's jurisdiction. Treatise evidence may suffice to establish nexuses in instances where, "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). Significantly, however, treatise materials usually are not specific enough to show nexus. Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, such a medical nexus has not been provided in this case. While the private oncologist found a likely relationship, it was speculative and not supported with a rationale. As such, this evidence is not dispositive and is assigned lesser probative value. Based on the evidence of record, the Board finds that medical evidence does not support service connection on a direct, chronicity/continuity of symptomatology, herbicide presumptive, or direct causation basis. The Board has considered the Veteran's lay statements that MDS was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.