Citation Nr: 1324418 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-18 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death to include exposure to herbicides. REPRESENTATION Appellant represented by: Polly Murphy, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to June 1971. The Veteran died in December 1998. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision by the Muskogee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified before the undersigned in a September 2009 hearing. The issue of entitlement to service connection for the cause of the Veteran's death was previously before the Board in December 2012 when it was remanded to afford the appellant a requested hearing.. FINDINGS OF FACT 1. In a January 1999 rating decision, the RO denied service connection for the cause of the Veteran's death; although notified of the denial in a February 1999 letter, the appellant did not initiate an appeal. 2. Evidence associated with the claims file since the January 1999 denial is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death. 3. The Veteran served in the Republic of Vietnam while on active duty and his exposure to herbicides is presumed. 4. The cause of the Veteran's death was the result of herbicide exposure in service. CONCLUSIONS OF LAW 1. The January 1999 rating decision in which the RO denied service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. As evidence pertinent to the claim for service connection for the cause of the Veteran's death, received since the RO's January 1999 denial, is new and material, the criteria for reopening the claim are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. Service connection is warranted for the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that service connection is warranted for the cause of the Veteran's death. Therefore, no further discussion of the VCAA is warranted as any deficiency has been rendered moot. Analysis The appellant submitted her original claim for service connection for the cause of the Veteran's death in December 1998. The claim was denied in January 1999. The appellant was informed of the decision via correspondence dated in February 1999. The appellant did not submit a notice of disagreement with the January 1999 rating decision denying service connection for the cause of the Veteran's death. This decision is final. 38 C.F.R. §§ 3.104, 20.302. In November 2002, the appellant submitted another claim for compensation for the cause of the Veteran's death. When a claim is the subject of a prior final denial, it may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review it on a de novo basis. Manio v. Derwinski, 1 Vet. App 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence received subsequent to the prior final rating decision is presumed credible for the purposes of reopening the claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The appellant's claim was denied in January 1999 as the RO determined that there was no competent evidence of record linking the cause of the Veteran's death to his active duty service. As set out below, the appellant has submitted statements from two different physicians which link the cause of the Veteran's death to his exposure to herbicides. The Board finds that this evidence satisfies the definition of new and material sufficient to reopen the claim of entitlement to service connection for the cause of the Veteran's death. 38 C.F.R. § 3.156(a). To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310; 38 C.F.R. §3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307 , 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). During the pendency of the appellant's claim and appeal, VA amended 38 C.F.R. § 3.309(e) to include ischemic heart disease. 75 Fed. Reg. 53202 (August 31, 2010). The Board is responsible for evaluating the evidence of record and assigning due probative weight. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 267-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Upon weighing the evidence, if 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A death certificate associated with the claims file demonstrates that the Veteran died in December 1998. The immediate cause of death was reported as acute myelogenous leukemia (AML). No other causes were reported. At the time of the Veteran's death, service connection was not in effect for any disabilities. The service treatment records are devoid of any evidence of the presence of acute myelogenous leukemia. The appellant has not argued that the Veteran had the disorder during active duty. She argues the Veteran was exposed to herbicides during active duty which eventually caused the AML which resulted in the Veteran's death. The Veteran served in Vietnam while on active duty and his exposure to herbicides is conceded. AML is not a disease for which service connection is presumed based on herbicide exposure. Significantly, even if a disease is not included in the list of presumptive disabilities, a claimant is not precluded from establishing service connection based on exposure to herbicide with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F. 1039, 104 (Fed. Cir. 1994). In support of her claim, she has submitted three opinions from health care professionals who have opined that the Veteran's AML was due to his exposure to herbicides while on active duty. The appellant submitted a February 2008 VA medical opinion which was prepared for a different Veteran. The opinion addresses the relationship between exposure to Agent Orange and development of acute leukemia. The author wrote that the chemical structure of Agent Orange is composed of benzene rings. The physician opined that it is as likely as not that exposure to Agent Orange involves exposure to the effects of its components including benzene constituents. The physician observed that benzene is a known causative agent of AML and that this is extensively documented in medical and environmental literature. The author provided citations to medical literature to support his opinion. The physician opined that it was at least as likely as not that the weight of the medical evidence makes it medically sound to find in favor of a causal relationship between benzene exposure and acute leukemia. The Board finds that this opinion is entitled to probative weight. The opinion has as its basis a review of medical and environmental studies. The fact that the opinion was for a different Veteran does not decrease the probative value. The mechanics of the exposure to herbicides (Agent Orange) which is found to contain benzene which is known to be a causative agent for AML is the same for that Veteran as the current Veteran. The appellant submitted another VA medical opinion for a different Veteran which was dated in May 2008. The author, a VA oncologist wrote that it was as likely as not that the Veteran's AML was etiologically related to Agent Orange or other herbicide agents during the Veteran's Vietnam service. The physician noted that the subject of his opinion had developed myelodysplasia which was his precursor to the development of AML. The author observed that the conclusions of the National Academy of Science regarding herbicides did not address the degree of association between Agent Orange and the development of myelodysplasia. The author concludes that with the absence of any data linking Agent Orange to the myelodysplasia and the known clinical progression of myelodysplasia to AML, it is difficult to draw any conclusions about the relation of AML to a history of Agent Orange exposure and hence it is as likely as not that the Veteran's diagnosed AML is etiologically related to exposure to Agent Orange. The Board finds the probative value of this evidence is negligible. The Veteran had never been diagnosed with myelodysplasia. Furthermore, the author himself writes that the medical evidence does not support a finding of a link between Agent Orange and AML. The author specifically notes the National Academy of Science determination that there is insufficient/inadequate evidence to determine whether an association exists between exposure to Agent Orange and the development of any other type of leukemia other than chronic lymphocytic leukemia. He also noted that the available evidence supports a finding of an increased risk of AML in children of veterans but not in veterans themselves. The appellant submitted a medical statement dated in October 2011 from a private physician. The author noted that he had reviewed the Veteran's extensive record from 2008. The physician referenced the February 2008 letter from the VA physician, J.J., M.D., which discussed a Veteran with acute myeloblastic leukemia. The February 2008 letter was referenced as showing that the chemical structure of Agent Orange included benzene rings and it was as likely as not that exposure to Agent Orange involved exposure to the effects of its components. The Board finds some probative weight should be accorded this statement. The physician cited to the February 2008 opinion and also cited to the Institute of Medicine, Gulf War and Health Review in that opinion. It is assumed that the physician who prepared the October 2011 letter had also reviewed the evidence from the Institute of Medicine, Gulf War and Health Review and agreed with the interpretation provided in February 2008 that there was a link between benzene exposure and AML. This evidence tends to be cumulative with the February 2008 opinion but the fact that the author did review the other evidence provides some weight separate and apart from the February 2008 letter. The medical evidence which cuts against the Veteran's claim consists of a VHA medical opinion dated in July 2011. The author, who is chief of the hematology and oncology section reviewed the claims file. He wrote that it was clear that the proximate cause of the Veteran's death was recurrence and progression of his leukemia. It was written that, although it is conceivable that exposure to Agent Orange may cause AML, this potential association has been extensively examined and no evidence for an etiologic association has been found by the scientific community. Most patients who develop acute myeloid leukemia do so without evident exposure to a recognized leukemogen. Absence of another risk factor does not implicate Agent Orange, as most patients develop AML without having risk factors for leukemia. Thus, it is much less than 50% likely that exposure to Agent Orange caused the Veteran's leukemia. The examiner found no evidence in the claims file documenting that the Veteran had multiple myeloma. The examiner found that the Veteran did have a soft tissue tumor composed of leukemia cells and described as a granulocytic sarcoma involving the testicle. This granulocytic sarcoma was not a separate disease entity from the AML. The Board finds this opinion is also entitled to be accorded probative weight. The examiner provided an opinion that there was no link between herbicides and AML. Significantly, the examiner did not address the question of whether exposure to benzene as a constituent of herbicides could have resulted in the Veteran's AML. The author merely made a blanket statement that the link between Agent Orange and AML had been extensively examined. The Board is presented with competent medical evidence the probative value of which weighs both for the appellant and against the appellant. The fact that the evidence weighing in favor of the appellant addresses a theory of etiology that is not addressed in the evidence weighing against the claim leads the Board to find that the slight preponderance of the evidence weighs in favor of the appellant's claim. No separate opinion has been obtained by VA in the present case regarding whether there is a link between herbicide exposure and the development of AML based on the presence of benzene. The Board notes the fact that there is a favorable opinion of record. In Mariano v. Principi, 17 Vet. App. 305 (2003), the United States Court of Appeals for Veterans Claims stated that it "would not be permissible for VA to undertake . . .additional development if a purpose was to obtain evidence against an appellant's case," Mariano, 17 Vet. App. at 312. The Court distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009). In Douglas, the Court indicated the Board may seek further evidentiary development even if a veteran has presented favorable, uncontroverted medical evidence if the favorable evidence, along with the other evidence of record, is not sufficient to allow the Board to make a fully informed decision. See Douglas, 23 Vet. App. at 26 (2009). In the current case, the Board finds the evidence is sufficient to allow the Board to make a fully informed decision. Based on the above discussion, the Board finds that the preponderance of the competent probative evidence of record supports a finding that service connection is warranted for the cause of the Veteran's death based on his exposure to herbicides while in Vietnam and the subsequent development of AML. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs