Citation Nr: 22019451 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-50 346 DATE: April 1, 2022 ORDER Entitlement to service connection for myelodysplastic syndrome is granted. FINDINGS OF FACT 1. The Veteran was diagnosed with myelodysplastic syndrome. 2. The Veteran was exposed to herbicides (Agent Orange) during service in the Republic of Vietnam. 3. The myelodysplastic syndrome was caused by exposure to herbicides during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for direct service connection for myelodysplastic syndrome have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to July 1969, including service in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in October 2017. In August 2018, the appellant, the Veteran's wife, requested that she be recognized as the claimant. A January 2019 VA memo confirms that the appellant has been substituted for the Veteran as the claimant in this matter. The appellant submitted a notice of disagreement in August 2018. The RO issued a statement of the case in October 2018. The appellant submitted her substantive appeal (VA Form 9) in October 2018, requesting a Board hearing. The appellant testified at a Board hearing in March 2022. Service Connection Entitlement to service connection for myelodysplastic syndrome Service connection may be granted for a disability resulting from disease or disability incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 disability and the current disability. The evidence shows that the Veteran had a diagnosis of myelodysplastic syndrome. Myelodysplastic syndrome is not an herbicide (Agent Orange) presumptive disease. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. However, discussion of this theory of service connection is rendered moot by the Board's grant of direct service connection in this case. Even in cases such as this one, where the Agent Orange presumptive provisions do not apply, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Veteran asserted, and the appellant now asserts, that his diagnosed myelodysplastic syndrome was due to service, specifically in-service exposure to herbicides during service in Vietnam. The Veteran had qualifying service in Vietnam such that exposure to herbicide agents during service may be presumed. Military personnel records, including the DD Form 214, reflect that the Veteran served in the Republic of Vietnam during the Vietnam War. Regarding direct service connection, a March 2017 private physician opinion, received in April 2018, opines that the myelodysplastic syndrome is at least as likely as not related to Agent Orange exposure during service in Vietnam. The physician explained that research was personally conducted regarding whether there is a relationship between Agent Orange and the development of myelodysplastic syndrome. In conducting that research, the private physician discovered a considerable amount of evidence that Agent Orange is a causative factor for myelodysplastic syndrome. The private physician included a research report regarding the relationship between "Agent Orange, United States Military Veterans, and Myelodysplastic Syndrome." In August 2018, the private physician's opinion was submitted again, with additional medical literature to support the opinion. The Board finds the March 2017 opinion to be highly probative, as it is based on relevant medical history, a thorough review of medical literature, and is supported by adequate rationale. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that direct service connection for myelodysplastic syndrome is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page) Accordingly, service connection for myelodysplastic syndrome is granted. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.