Citation Nr: 22006331 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 16-24 920 DATE: February 3, 2022 ORDER Entitlement to service connection for myelodysplasia syndrome (MDS) is granted. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran's MDS was at least as likely as not related to in-service exposure to Agent Orange and benzene. 2. The Veteran's death certificate reflects that he died in January 2013. The immediate cause of death listed is MDS with pancytopenia. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for MDS have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to DIC based on service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1968. The Veteran died in January 2013, and the appellant is his surviving spouse, who was recognized as the substitute appellant for the Veteran's pending claim. See March 1, 2016 Substitution Decision. She appealed an April 2013 rating decision by the Agency of Original Jurisdiction (AOJ). In September 2018, the Board remanded the appellant's claims to the AOJ for further development. Thereafter, in August 2020, the Board denied the appellant's claims for service connection for myelodysplasia and the Veteran's cause of death. The appellant appealed the August 2020 Board decision to the Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties and remanded the appeals to the Board for further proceedings consistent with the JMR. The Board acknowledges that the JMR determined that a January 2020 VA opinion relied upon by the Board in its August 2020 decision was inadequate for rating purposes and that the Board should remand the claims to obtain a new opinion. See JMR at 3. However, for the reasons below, the Board finds there is sufficient evidence of record to grant the appellant's claims. Accordingly, an additional remand is unnecessary. 1. MDS Prior to his death, the Veteran claimed entitlement to service connection for MDS due to herbicide exposure. See March 2011 Notice of Disagreement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA medical records reflect that prior to his death the Veteran was diagnosed with MDS. See November 2012 hematology and oncology note. Additionally, the Veteran's personnel records reflect he had service in Vietnam from May 1967 to May 1968 and is thus presumed to have been exposed to Agent Orange. Thus, the first two Shedden elements are met, and the remaining question is whether the Veteran's MDS was etiologically related to service, to include his Agent Orange exposure. In an opinion received in March 2020, C.H., certified nurse practitioner, opined that the Veteran's MDS was at least as likely as not related to his in-service Agent Orange exposure. C.H. explained that medical literature showed that exposure to Agent Orange caused significant cell mutation and increased risk of all cancers. C.H. also cited research indicating that benzene, a component of Agent Orange, was a known carcinogen that caused hematologic malignancies including MDS and myeloid leukemias. A separate March 2020 opinion from Dr. M.L. stated that the etiology and risk factors that predisposed individuals to MDS were not fully understood, but that it was well established that exposure to certain environmental toxins like benzene and other aromatic hydrocarbons predisposed heavily exposed individuals to developing aplastic anemia, which was a risk factor for MDS and leukemia. Dr. M.L. cited a study on an industrial accident in Italy which found that myeloid leukemia occurrences were clearly in excess for a population exposed to tetrachlorodibenzodioxin, a component of Agent Orange. Dr. M.L. reasoned that the study's findings supported a link between Agent Orange exposure and MDS. These opinions are supported by reasoned explanations with citations to medical research. The Board therefore finds them to be persuasive evidence. As noted above, a contrary VA opinion was obtained in January 2020, but it was deemed to be inadequate for rating purposes. Although an addendum from the same clinician was obtained in June 2020, it contained no persuasive findings as to the etiology of the Veteran's MDS. Resolving any reasonable doubt in favor of the appellant, the Board concludes that the requirements of 38 C.F.R. § 3.303(a) have been met. As such, service connection for MDS is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to DIC To grant service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). This decision awards service connection for the Veteran's MDS. Furthermore, MDS is listed as the immediate cause of the Veteran's death on his death certificate. As such, entitlement to DIC based on cause of death is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.