Citation Nr: 1018721	
Decision Date: 05/20/10    Archive Date: 06/04/10

DOCKET NO.  07-24 504	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to service connection for the cause of the 
Veteran's death.  


REPRESENTATION

Appellant represented by:	Gregory S. Weiss, Attorney


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

M. Tenner, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to January 
1972.  He died in October 2004.  The appellant is the 
Veteran's surviving spouse.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a May 2006 decision rendered by the St. 
Petersburg, Florida Regional Office (RO) of the Department of 
Veterans Affairs (VA).  In September 2009, the appellant 
testified before the undersigned during a hearing held at the 
RO.  A transcript of the proceeding is of record.  


FINDINGS OF FACT

1.  The Veteran served in Vietnam and is presumed to have 
been exposed to herbicide agents, including Agent Orange.  

2.  During the Veteran's lifetime, service connection was not 
in effect for any disability.  

3.  The Veteran died in October 2004 due to acute myelogenous 
leukemia.  

4.  Acute myelogenous leukemia was not diagnosed until more 
than 30 years following the Veteran's separation from 
service; however, the most persuasive medical opinions of 
record weigh in favor of a finding that the Veteran's death 
was the result of his in-service exposure to herbicides. 


CONCLUSION OF LAW

Affording the appellant the benefit of the doubt, the 
criteria for service connection of the cause of the Veteran's 
death have been met.  38 U.S.C.A. §§ 1110, 1310, 5107 (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2009). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's 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. 2009); 38 C.F.R. §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2009).

The United States Court of Appeals for Veterans Claims 
(Court) has concluded that the VCAA was not applicable where 
further assistance would not aid the appellant in 
substantiating his or her claim.  Wensch v. Principi, 15 Vet 
App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not 
required to provide assistance "if no reasonable possibility 
exists that such assistance would aid in substantiating the 
claim").  In this case, by a letter of November 2005, the RO 
generally advised the appellant of the criteria for claims 
for service connection for the cause of a Veteran's death and 
provided an opportunity to submit any evidence pertinent to 
the claim.  However, in view of the Board's favorable 
decision in this appeal, further assistance is unnecessary to 
aid the appellant in substantiating the claim.



II.  Background and Analysis

The Veteran served on active duty in the U.S. Navy.  His 
primary military occupational specialty was in engine 
mechanics.  He served in Vietnam from June 1969 to May 1970.  
His service treatment records are not associated with the 
claims file.  It is not alleged, however, that the Veteran's 
fatal cancer was initially incurred during service.  Rather, 
the appellant alleges that the Veteran's exposure to 
herbicide agents during service caused his fatal acute 
myelogenous leukemia.  

Private treatment records from Dr. S., the Mayo Clinic, and 
Dr. M.-A. are of record.  They reveal that the Veteran was 
initially diagnosed with myelodysplastic syndrome in October 
2003.  Later, the diagnosis was changed to acute myelogenous 
leukemia.  The certificate of death indicates that he died on 
October [redacted], 2004, due to complications from acute myelogenous 
leukemia

In an October 2006 letter, the Veteran's treating oncologist, 
Dr. M.-A., stated that the Veteran was exposed to Agent 
Orange during his U.S. Navy service and that there was a 
relationship between Agent Orange and acute myelogenous 
leukemia.  He stated that if the Veteran was indeed exposed 
to Agent Orange, then it was more likely than not the cause 
of his subsequent development of myelodysplastic syndrome and 
acute leukemia.  

In a subsequent letter dated in January 2009, Dr. M.-A. 
provided further rationale, indicating that the chemical 
structure of Agent Orange was composed of benzene rings and 
that benzene was well known as a causative agent for acute 
myeloid leukemia as well as myelodysplastic syndrome.  He 
concluded that the Veteran's fatal cancer was "as likely as 
not (at least 50% probability) related to his exposure to the 
herbicides (Agent Orange) during his service in the Vietnam 
War."  

During the hearing in September 2009, the appellant provided 
credible testimony in support of her claim, including 
testimony regarding the Veteran's post-service employment 
history.  

Following the hearing, in November 2009, the Board forwarded 
the Veteran's claims file to a VA staff hematologist.  
Following a review of the Veteran's claims file, the examiner 
provided an opinion stating that it was "at least as likely 
as not (50% probability) that his Pure Erythroid Leukemia is 
attributable to his active duty service and specifically to 
his exposure to herbicide agents while serving in Vietnam."  
In support of her opinion the hematologist noted that the 
Veteran had a rare form of leukemia that affected both the 
red and white blood cell line.  She noted that organic 
solvents, such as benzene, have been associated with a higher 
risk of developing acute myeloid leukemia.  

In general, service connection may be granted for disability 
resulting from disease or injury incurred in or aggravated 
during active military service.  38 U.S.C.A. §§ 1110, 1131.  
Service connection may also be established for disease 
diagnosed after discharge from service when all the evidence 
establishes that the disease was incurred in service.  38 
C.F.R. § 3.303(d).

To establish service connection for the cause of the 
Veteran's death, evidence must be presented which in some 
fashion links the fatal disease to a period of active service 
or an already service-connected disability.  See 38 U.S.C.A. 
§§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312.  In short, 
the evidence must show that a service-connected disability 
was either the principal cause or a contributory cause of 
death.  For a service-connected disability to be the 
principal (primary) cause of death it must singly or with 
some other condition be the immediate or underlying cause or 
be etiologically related.  For a service-connected disability 
to constitute a contributory cause it must contribute 
substantially or materially; it is not sufficient to show 
that it casually shared in producing death, but rather it 
must be shown that there was a causal connection.  38 
U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. 
Brown, 7 Vet. App. 36, 39 (1994).  

VA regulations provide that a veteran who had active 
military, naval, or air service in the Republic of Vietnam 
during the Vietnam Era shall be presumed to have been exposed 
during such service to an herbicide agent, unless there is 
affirmative evidence to establish that the veteran was not 
exposed to any such agent during that service.  See 38 C.F.R. 
§ 3.307(a)(6)(iii).  In such circumstances, service 
connection may be granted on a presumptive basis for the 
diseases listed in 38 C.F.R. § 3.309(e).  The list of 
diseases presumed by law as being linked to Agent Orange and 
other herbicides used in Vietnam includes chronic lymphocytic 
leukemia, but does not include acute myelogenous leukemia.  
38 C.F.R. §3.309(e).  Accordingly, the presumptive 
regulations regarding exposure to Agent Orange are not 
applicable in this case. 

Rather, in the Federal Register, June 24, 2002 (Volume 67, 
Number 121), Pages 42600-42608, VA published findings of the 
NAS Update 2000 and a special report.  This report addressed 
a negative association between herbicides and leukemia.  The 
report placed leukemia in a category labeled 
"inadequate/insufficient evidence" to determine whether an 
association existed.  The findings cited in the report, 
supporting the determination that no association existed 
between acute myeloid leukemia (AML) and herbicide exposure, 
are as follows:

[AML] is the most common leukemia among adults.  Risk factors 
for AML include high doses of ionizing radiation, 
occupational exposure to benzene, and some medications used 
in cancer chemotherapy.  Genetic disorders, including 
Fanconi's anemia and Down's Syndrome, are associated with an 
increased risk for AML.  Tobacco smoking has been suggested 
as a risk factor.   

Based on these NAS studies, and all other sound medical and 
scientific information and analysis available, the Secretary 
has found that the credible evidence is against an 
association between herbicide (dioxin) exposure and AML.  

The reports, however, do not discuss acute myelogenous 
leukemia.  

Recently, however, the Secretary of VA has determined that 
there is a positive association between exposure to herbicide 
agents and the occurrence of AL amyloidosis.  See Federal 
Register Vol. 73, 65280 (Nov. 3, 2008). 

Again, however, reports, the reports do not discuss acute 
myelogenous leukemia.  

Notwithstanding the foregoing presumptive provisions, the 
Federal Circuit has determined that the "Veteran's Dioxin 
and Radiation Exposure Compensation Standards Act" does not 
preclude a veteran from establishing service connection with 
proof of actual direct causation.  See Combee v. Brown, 34 
F.3d 1039, 1042 (Fed. Cir. 1994).  Thus, under Combee, 
presumption is not the sole method for showing causation, and 
thereby establishing service connection.  See also Stefl v. 
Nicholson, 21 Vet. App. 120 (2007).  

Here, the appellant has presented competent medical evidence 
indicating that the Veteran's fatal form of leukemia was 
associated with his exposure to herbicide agents during 
service.  Despite VA's conclusion that a presumption under 
law is not applicable, the Board is not free to ignore this 
evidence.  This evidence is balanced against the NAS studies 
that determined that there was inadequate evidence to 
associate herbicide exposure and leukemia.  

The benefit-of-the-doubt rule, codified at 38 U.S.C.A. § 5107 
provides that:

The Secretary shall consider all information and lay and 
medical evidence of record in a case before the 
Secretary with respect to benefits under laws 
administered by the Secretary.  When there is an 
approximate balance of positive and negative evidence 
regarding any issue material to the determination of a 
matter, the Secretary shall give the benefit of the 
doubt to the claimant.  

The implementing regulation at 38 C.F.R. § 3.102 restates the 
provision in terms of "reasonable doubt." 

Evidence is in "approximate balance" when the evidence in 
favor or and opposing the veteran's claim is found to be 
almost exactly or nearly equal.  The statutory benefit of the 
doubt rule applies when the factfinder determines that the 
positive and negative evidence relating to a veteran's claim 
are "nearly equal," thus rendering any determination on the 
merits "too close to call."  Ortiz v. Principi, 274 F.3d 
1361, 1365 (Fed. Cir. 2001).  

In this matter, there is an approximate balance of evidence 
both for and against the claim.  Accordingly, as the evidence 
is in a state of equipoise, the benefit-of-doubt-rule is for 
application.  Thus, resolving all reasonable doubt in the 
appellant's favor, the Board determines that service 
connection for the cause of the Veteran's death is warranted.  


ORDER

Service connection for the cause of the Veteran's death is 
granted.  



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs