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Court Wins

CCK Helps Blue Water Navy Veteran Win Benefits for Myelodysplastic Syndrome

May 17, 2022
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Case Summary

The Veteran served in the United States Navy from 1965 to 1968 during the Vietnam War era.  During his active duty, the Veteran served on the U.S.S. Buck (DD-761), which was within 12 nautical miles seaward of the Vietnam demarcation line in October 1966.

On June 4, 2018, he filed a claim for VA disability benefits for myelodysplastic syndrome (MDS) due to herbicide (e.g., Agent Orange) exposure.  The Department of Veterans Affairs (VA) denied service connection for MDS in a September 2018 rating decision.  In response, the Veteran filed a Notice of Disagreement, seeking a 100 percent disability rating for MDS.

VA issued a Statement of the Case (SOC) in March 2020, once again denying service connection for MDS.  Chisholm Chisholm & Kilpatrick joined the case shortly after and on May 11, 2020, helped the Veteran file an appeal to the Board of Veterans’ Appeals (BVA).

In a September 2020 decision, the Board remanded the issue of service connection for myelodysplastic syndrome based on herbicide exposure.  The Board determined that VA made a duty to assist error when it did not independently confirm whether the Veteran was exposed to herbicides while aboard the U.S.S. Buck.

CCK Argues Direct Service Connection for MDS Based on Herbicide Exposure

The Veteran’s case returned to the Board’s direct docket in December 2021.  In the appeal, CCK contended that the Veteran’s MDS is directly related to herbicide exposure that occurred aboard the U.S.S. Buck in Vietnam.  The Blue Water Navy Act of 2019 stated that veterans who served within 12 nautical miles seaward of the demarcation line of Vietnam are eligible to receive the same presumption of exposure to herbicides as veterans who served boots-on-the-ground in Vietnam.

Additionally, in three separate medical opinions, two different private physicians determined that the Veteran’s MDS was “at least as likely as not” due to exposure to herbicides.  CCK argued that in previous decisions, VA denied service connection simply because myelodysplastic syndrome is not considered presumptive under 38 CFR § 3.309.

The Board agreed with CCK’s arguments and determined that the medical opinions linking MDS to herbicide exposure were more than sufficient.

Board Grants Service Connection for Myelodysplastic Syndrome

In January 2022, the Board finally awarded service connection for myelodysplastic syndrome due to herbicide exposure.  In a subsequent rating decision, VA granted the Veteran disability benefits at a 100 percent rate dating back to January 2018.