Citation Nr: 1342944 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-13 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at law ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971, to include combat service in the Republic of Vietnam. He died in January 1980. The appellant claims as the Veteran's widow. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a June 2008 rating decision of the VA Regional Office in Philadelphia, Pennsylvania that declined to reopen the claim of entitlement to service connection for the cause of the Veteran's death. In November 2010 the Board, after reopening the claim, remanded the case for further development. By decision dated in November 2010, the Board reopened the claim and remanded the matter for further development. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange/herbicides therein. 2. The Veteran died due to respiratory insufficiency due to an intrapulmonary hemorrhage and infection due to acute myelogenous leukemia (AML). 3. The evidence of record is in equipoise as to whether AML is related to the Veteran's military service, to include his combat service in the Republic of Vietnam. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, acute myelogenous leukemia was incurred in service, and was the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002 & Supp. 2013); C.F.R. §§ 3.102, 3.303, 3.306, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim unless the assistance would not aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). In view of the Board's favorable decision below, further notice and assistance are unnecessary to aid the appellant in substantiating this claim. See Wensch v. Principi, 15 Vet. App. 362 (2001). Pertinent Law and Regulations To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred or aggravated in service either caused or contributed to cause death. The 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. To be considered a contributory cause of death, it must be shown that the 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. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. § 3.312 (2013). VA regulations provide that if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain 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 the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. This list of diseases includes all chronic B-cell leukemia including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e) (2013). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran served in combat in the Republic of Vietnam during the Vietnam era. He is therefore entitled to a presumption of in-service exposure to herbicide agents. Private clinical records dated between October and November 1979 reflect that the Veteran was treated for symptoms subsequently diagnosed as acute myelogenous leukemia, confirmed by bone marrow biopsy. Following intensive chemotherapy, he died in January 1980. His death certificate reflects the immediate cause of death as respiratory insufficiency due to or as a consequence of intrapulmonary hemorrhage and infection, due to acute myelogenous leukemia. In April 1980, S. Bulova, M.D., an Associate Professor with the Department of Medical Oncology and Hematology at Hahnemann Medical College and Hospital, wrote that the Veteran was exposed to Agent Orange that contained dioxin and a variety of petrochemicals in Vietnam. Dr. Bulova stated that dioxin had been demonstrated to be carcinogenic and have a suppressive effect on the immune system in animals, and that petrochemicals had been shown to be associated with the appearance of malignancies in humans. Dr. Bulova opined that "I feel that dioxin as well as other petrochemicals can be implicated as playing a role in the induction of [the Veteran's] acute leukemia. As such I believe that his death can be considered service related." In September 1980, a VA Chief of the Medical Service at a VA hospital stated that he had reviewed the Veteran's record with the specialist in hematology and performed additional research. The VA physician related that he was unable to find any documentation on an increased risk for AML following exposure to dioxin. For this reason, it was determined that no basis existed to find that AML was the result of chemical exposure in Vietnam. In a letter dated in September 2003, I. Brodsky, M.D., of the Hematology/Oncology Department of Hahnemann University Hospital stated that he was fundamentally in agreement with Dr. Bulova's conclusions. Dr. Bulova reiterated his opinion with supporting rationale in correspondence dated in May 2007. In October 2007, B. R. Cooper, M.D., related that the clinical literature supported a finding that dioxin played a causative role in the development of the Veteran's leukemia and his subsequent demise from this disease. In a statement dated in January 2010, a VA physician stated that it was unlikely that Agent Orange caused or contributed to the Veteran's AML because it was not among the disorders on the Agent Orange Registry that were recognized as being related to such exposure. Dr. Bulova wrote in October 2011 that the Veteran had been exposed to benzene and Agent Orange while serving in Vietnam; that benzene was a known carcinogenic agent and had been implicated as a cause of AML. He stated that it was likely that benzene and dioxin exposure played a major role as a causative agent of the Veteran's AML. In a statement dated in November 2011, a VA physician asserted that the Veteran's AML was in no way associated with Agent Orange exposure. He related that VA statistics did not show that Agent Orange exposure was a cause of this hematologic condition. The VA physician who considered the question of relationship and causality in January 2010 reiterated his position in February 2012. The matter was subsequently addressed by another VA physician in the hematology and oncology clinic in October 2012. This reviewing physician analyzed the record and provided supporting rationale in his opinion that Agent Orange exposure was not associated with an increased risk of AML in any study of which he was aware, and that there was no data to support this conclusion. The reviewing physician went on to state that there had been some reference to the Veteran being exposed to petrochemicals and benzene. The examiner stated that benzene was associated with an increased risk of AML, and that if the Veteran had been exposed to it during his military duties, it must be considered that this exposure increased his risk of developing AML. The reviewing physician added, however, that he had no access to military records indicating whether the Veteran was in fact exposed to benzene. If, in fact, exposure to benzene were documented, the reviewing physician would consider the risk of developing AML to have been influenced by the Veteran's military service. It was noted that this was not true of petrochemical exposure in general. The same VA examiner essentially reiterated these findings and conclusions with more extensive rationale in a report dated in February 2013. In correspondence dated in November 2013, Dr. Bulova stated that benzene rings were an inherent structural component of Agent Orange, and that Agent Orange was combined with diesel fuel prior to being sprayed. He noted that benzene was a component of diesel fuel and that when the Veteran was exposed to Agent Orange, he was exposed to benzene. Following additional supporting rationale, it was his professional opinion that it was at least as likely as not that the Veteran developed AML as a result of in-service exposure to benzene, and that benzene exposure was implicated in his death from AML. Also received in support of the claim were various documents, that among other things, noted that Agent Orange was a mixture of two chemicals that was combined with kerosene or diesel fuel to create a potent herbicide, as well as and information pertaining to benzene and its effects, that included bone marrow problems and leukemia. Received in support of the claim was a February 2008 clinical report from J. Jacobs, MD, FACP, Emeritus Professor of Medicine (Hematology/Oncology) Emory University School of Medicine and Former Chief of Hematology/Oncology at the Atlanta VA Medical Center who had considered this question relative to another Board decision on essentially the same issue. He noted that in addition to the medical records, cogent medical literature had been consulted. Among other things Dr. Jacobs stated that the chemical structure of Agent Orange is composed of benzene rings and it was as likely as not that exposure to Agent Orange and its solvents involved exposure to the effects of its benzene constituents. It was noted that benzene was a known causative agent of acute myeloid leukemia and that this was extensively documented in the medical and environmental literature. Dr. Jacobs related that "Having reviewed all records submitted in this case, I believe the preponderance of the evidence of exposure to dibenzo-p-dioxins (Agent Orange and solvents) and the association with the Veteran's Myelodysplasia/ Leukemia should be resolved in the Veteran's favor. It is at least as likely as not that there is a relationship/ association/causative effect between the exposure to the pesticide/solvents used in its distribution and his MDS/Leukemia as described by medical literature in both animal and human exposures." Legal Analysis At the outset, the Board points out that the appellant does not contend that the AML from which the Veteran died was manifested in service or within one year thereof. Therefore, the Board need not discuss whether service connection for is directly or presumptively related to service in this regard. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp 2013); 38 C.F.R. § 3.307, 3.309 (2013). The appellant does maintain that the Veteran's death is presumptively related to Agent Orange exposure in Vietnam. The Board finds, however, that there is no basis for presumptive service connection of AML based on presumed herbicide exposure under applicable regulations. This is because AML is not a condition on the list of diseases for which a presumption of service connection applies relative to Agent Orange exposure or other herbicides. See 38 C.F.R. § 3.309(e). Nevertheless, it is well established that service connection for disability claimed as due to exposure to Agent Orange/herbicides may also be conceded by showing that a disorder resulting in disability or death is in fact causally linked to such exposure or with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, there are strongly competing opinions as to whether the Veteran developed AML related to Agent Orange exposure during service. It is the Board's responsibility to assess the credibility and weight to be given the evidence, to analyze the credibility and probative value of all evidence, and account for the evidence that it finds to be persuasive or unpersuasive. Eddy v. Brown, 9 Vet.App. 52 (1996). In this case, the Board observes that there is extensive competent and probative evidence for and against a finding that AML is related to the Veteran's exposure to herbicides/dioxin in service. The Board notes, however, that the more recent theory of entitlement to service connection for AML based on a benzene connection to Agent Orange is persuasive. In this regard, clinical evidence and authority evidence have been submitted showing that benzene was an integral component of Agent Orange, as well as its diesel or kerosene solvent. The scientific and medical literature clearly support a relationship between benzene exposure and the increased incidence of AML, as indicated by the VA examiner in October 2012 who stated that exposure to benzene increased the Veteran's risk of developing AML. Therefore, on review of the medical and clinical evidence of record, the Board finds that the evidence is in relative equipoise such that a finding of AML related to chemical exposure in Vietnam may be conceded. The benefit of the doubt is resolved in favor of the appellant. Entitlement to service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs