Citation Nr: 1303314 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 05-30 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of death. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran, whose death occurred in April 19998, served on active duty from June 1969 to December 1970. The appellant in this matter is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in June 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2012, the Board sought to obtain an independent medical expert opinion as to questions raised by this appeal and that opinion was received by the Board in November 2012. The appellant was provided a copy of that opinion by the Board later in November 2012 and she responded in December 2012 with a written statement that has been added to the record. FINDINGS OF FACT 1. The Veteran had land service while on active duty in Vietnam and must be presumed to have been exposed to one or more toxic herbicides, including Agent Orange. 2. The cause of the Veteran's death was overwhelming leukemia, characterized as a biphasic type and containing elements of acute myelogenous leukemia (AML) due and acute lymphoblastic leukemia (ALL), with markers of B-cell and T-cell origins. 3. It is at least as likely as not that the Veteran's inservice herbicide exposure led to the postservice onset of his leukemia. 4. Service-connected disability either caused or contributed to the Veteran's fatal leukemia. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, leukemia directly the result of inservice herbicide exposure caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. In the context of claims for service connection for the cause of a veteran's death, the notice should include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of a veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). As the disposition herein reached is favorable to the appellant, the need to discuss further the VA's efforts to comply with its duties to notify and assist is obviated. Service connection for the cause of a veteran's death may be granted if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disorder is one that was incurred in or aggravated by active service or one for which there exists a rebuttable presumption of service incurrence if manifested to the required degree within the requisite period following a veteran's separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(b), (c). Service connection generally requires medical evidence of a current disability; medical, or in some cases, lay evidence of the inservice incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the current disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, 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. 38 C.F.R. § 3.307(a)(6)(iii). In addition to the forgoing, the Board observes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that he rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). By regulation made effective August 31, 2010, certain additional diseases were added to the aforementioned list, to include all B-cell leukemias, Parkinson's disease, and ischemic heart disease. See 75 Fed. Reg. 53202 (Aug. 31, 2010). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S. Court of Appeals for the Federal Circuit has determined that 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); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom; Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997) (specific applicability in Agent Orange cases). Thus, presumption is not the sole method for showing causation. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran died in April 1999. His death certificate indicates that the immediate cause of his death was chronic myelogenous leukemia (CML), due to or as a consequence of ALL, with both referenced entities having had their onset five months prior to death. During his lifetime, service connection was not established for any disability. The appellant asserts that the cause of the Veteran's death is directly related to his active service, and, specifically, as a result of his exposure to herbicides. Essentially, she contends that the causes of death listed on the Veteran's death certificate, CML due to ALL, are so similar to chronic lymphocytic leukemia (CLL) and multiple myeloma, both of which are presumed by law to be linked to herbicide exposure, that they should be considered the same disorder, and therefore also presumed to be linked to herbicide exposure. In support of her claim, the appellant has submitted internet or medical articles, one of which indicates that "[a] minority of acute leukemias have features characteristic of both the myeloid and lymphoid lineages and for this reason are designated mixed-lineage," or biphenotypic acute leukemias (BAL). The article further indicates that there is a lack of objective criteria for distinguishing BAL from AMLs or ALLs. Another article submitted by the appellant also indicates BAL cells may display myeloid differentiation features or have lymphoid/undifferentiated morphology. Service department records confirm that the Veteran had land service in Vietnam, and, thus, it must be presumed that he was in fact exposed to Agent Orange or other toxic herbicide during his Vietnam service. That presumption is not otherwise overcome by evidence to the contrary. The question presented by this appeal is therefore whether the Veteran's fatal leukemia was a B-cell leukemia for which there exists a presumption of service incurrence based on inservice herbicide exposure. Service treatment records are negative for pertinent complaints or findings involving leukemia. Postservice medical data denote a December 1998 diagnosis of BAL, with cytogenic analysis showing a 9:22 translocation. A December 1998 pathology report demonstrated findings consistent with a diagnosis of BAL with reticuloendothelial cells. Standard induction chemotherapy for AML and ALL followed, but without remission, followed by further chemotherapy and, ultimately, death. Review of the record indicates that there is evidence both for and against the proposition that the Veteran's fatal leukemia was of a B-cell type. Following entry of the Board's adverse decision in April 2008 and an appeal to the U.S. Court of Appeals for Veterans Claims, the case was returned to the Board for further review. In August 2010, the Board obtained a medical opinion through the Veterans Health Administration from a VA physician, in which was indicated that the Veteran had a history of Agent Orange exposure and a diagnosis of ALL with a 9 and 22 translocation of chromosomes, but with notation that to date there had not been sufficient evidence of an association between Agent Orange exposure and acute lymphocytic leukemia. That same VA physician reiterated in October 2012 that there was zero percent probability that the Veteran's death was causally related to CLL or multiple myeloma, as he had a diagnosis of acute lymphoblastic leukemia. Citation was made to medical literature by the VA physician to support his opinion. Further medical opinion was thereafter sought and obtained by the Board from an independent medical expert. That opinion was received in November 2011 and indicated that the Veteran died from overwhelming leukemia, characterized as a biphasic type and containing elements of AML and ALL, that is, markers of both myeloid (B-cell) and lymphoid (T-cell) origins. In the opinion of the expert, the Veteran rapidly succumbed to an aggressive leukemia consisting of immature cells from both sources of white blood cells, B cells (originating in the bone marrow) and T cells (originating in the thymus gland). The expert referenced the finding by the Institute of Medicine's Committee to Review the Health Effects of Vietnam Veterans of Exposure to Herbicide in associating Agent Orange exposure and the incidence of B-cell lymphatic neoplasms. Therefore, in the judgment of the expert, if the premise is accepted as to the referenced association, the Veteran's leukemia and subsequent death were attributed to his Army service and exposure to herbicide. On balance, the evidence is in relative equipoise that the Veteran's fatal leukemia was at least in part a B-cell leukemia directly related to his inservice herbicide exposure. To that extent, 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. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs