Citation Nr: 0816992 Decision Date: 05/23/08 Archive Date: 06/04/08 DOCKET NO. 04-34 071 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of death of the veteran. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from February 1965 to January 1969. The veteran died on April [redacted], 2000. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2003 RO decision. In February 2008, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901(a) (2007). The requested opinion has been provided and has been associated with the claims folder. The VHA opinion was also provided to the appellant. The appellant was afforded 60 days to provide additional argument or evidence. In May 2008, the appellant submitted a statement that she had no further argument or evidence to submit and elected to proceed with adjudication of her claim. FINDINGS OF FACT 1. The appellant has been notified of the evidence necessary to substantiate her claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The Certificate of Death shows that the immediate cause of the veteran's death was multiple organ dysfunction syndrome, and the underlying causes were severe pancreatitis and splenectomy. A significant condition contributing to the veteran's death was chronic leukemia with Agent Orange Exposure. 3. The competent medical evidence shows that a significant condition contributing to the veteran's death was caused by exposure to chemicals or herbicides in service. CONCLUSION OF LAW The cause of the veteran's death was incurred as a result of his active military service. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.5, 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected or compensable disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2007). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection for the cause of a veteran's death requires evidence that a service-connected disability was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal 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). A service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death. 38 C.F.R. § 3.312(c). Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). In addition, certain chronic diseases, including leukemia, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, there is no indication of leukemia until September 1995, several years after service. As the veteran was not diagnosed with leukemia within one year after separation from service, this presumption does not apply. In this case, the veteran died in April 2000. The appellant contends that the veteran was exposed to Agent Orange in service causing leukemia which contributed to his death. The Board observes that service-connection was not in effect for any disability, including leukemia, at the time of the veteran's death. The veteran's service medical records are negative for any treatment or diagnosis of leukemia. There is no indication of the disease until its diagnosis in September 1995. The DD214, however, shows that the veteran was aboard the USS John R. Craig in service. He received the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960) and the Vietnam Service Medal. Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2007) are met. See 38 C.F.R. § 3.309(e) (2007). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include chronic lymphocytic leukemia, not chronic myelomonocytic leukemia, which the veteran was diagnosed with. Nevertheless, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The provisions set forth in Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). If a veteran does not have a disease associated with herbicide exposure, he is presumed to have been exposed to herbicides if he served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. See 38 U.S.C.A. § 1116(f). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2007). VA's General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. See VAOPGCPREC 27- 97 (July 23, 1997), published at 62 Fed. Reg. 63604 (1997). The Board notes that a letter written by the Commander of the USS John R. Craig described an event that the crew of the ship went ashore in Nha Trang in Vietnam. As the veteran's service was between 1965 and 1969, the Board finds that the veteran had actual visitation in the Republic of Vietnam between January 1962 and May 1975. There is also a statement in support of the appellant's claim from a shipmate of the veteran that indicated that they were exposed to chemicals, including kerosene JP-5, aboard the USS John R. Craig. There is no affirmative evidence of record showing the veteran was not exposed to Agent Orange in service. Therefore, the Board finds that the veteran is presumed to have been exposed to an herbicide agent in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, there is competent medical evidence that exposure to herbicides in Vietnam caused chronic myelomonocytic leukemia that contributed to the veteran's death. There are private medical opinions of record dated in August 2004 and September 2004 that indicate the possibility that the chronic myelomonocytic leukemia was related to exposure to benzene and Agent Orange in service. More over, the February 2008 VHA opinion provides a nexus between the chronic myelomonocytic leukemia and service. The examiner noted that chronic myelomonocytic leukemia is considered by the World Health Organization as one of the myelodysplastic syndromes and there is considerable evidence linking them to environmental and chemical exposures. Furthermore, the examiner opined that the veteran's chronic myelomonocytic leukemia was the result of exposure to chemicals or herbicides while in service. Additionally, there is evidence that chronic myelomonocytic leukemia was a contributing cause to the veteran's death. Specifically, the Certificate of Death shows that a significant condition contributing to the veteran's death was chronic leukemia with Agent Orange exposure. In conclusion, there is presumed exposure to herbicides in service and competent medical evidence linking herbicide exposure in service to chronic myelomonocytic leukemia. Additionally, chronic myelomonocytic leukemia was a contributory cause of death. The Board finds that a service- connected disability, chronic myelomonocytic leukemia, was a contributory cause of the veteran's death and grants the appellant's claim. ORDER Service connection for the cause of death of the veteran is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs