Citation Nr: 1542978 Decision Date: 10/06/15 Archive Date: 10/13/15 DOCKET NO. 15-19 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for acute myelomonocytic leukemia (AML), to include as a result of exposure to herbicides, for accrued benefits purposes. REPRESENTATION Appellant represented by: Robin Hood, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to April 1972. He died on June [redacted], 2014. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 and March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and Philadelphia, Pennsylvania, respectively. The Philadelphia, Pennsylvania RO has current jurisdiction. In September 2015, the appellant, sitting at the RO, testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. This appeal was processed using VBMS (the Veterans Benefits Management System) and the Virtual VA paperless processing system. Accordingly, any future consideration of this Veteran's case shall take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in June 2014. The death certificate lists the causes of death as hemorrhage, hyperkalemia, tumor lysis syndrome, and AML blast crisis. Anemia and thrombocytopenia from leukemia were listed as significant conditions contributing to, but not resulting in the underlying cause of death. 2. At the time of the Veteran's death, there was a pending claim for service connection for AML that was not finally adjudicated. 3. Service records confirm that the Veteran served in Vietnam during the Vietnam era and is thus presumed to have been exposed to herbicides (including Agent Orange) during service. 4. Although the Veteran did not have a B-cell leukemia for which the VA Secretary has recognized an etiological relationship to herbicide exposure exists, competent, probative medical opinion evidence indicates that the Veteran's AML was as likely as not due to exposure to herbicides during service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2014). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for AML, for accrued benefit purposes, have been met. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). Given the favorable disposition of the claims for service connection for AML, to include as a result of exposure to herbicides, for accrued benefits purposes and service connection for the Veteran's cause of death, the Board finds that all notification and development action needed to fairly adjudicate the claims has been accomplished. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability 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. 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 underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). 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. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. During the Veteran's lifetime, service connection was not established for any disability. His death certificate reflects that the cause of his death included AML. The Veteran died in June 2014. The appellant contends that the Veteran's fatal AML was caused by his exposure to herbicides during his military service in Vietnam, and that service connection for the cause of his death is thus warranted. Under the applicable criteria, as noted above, 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. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active 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 the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne, or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset 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; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with one exception being that chloracne or other acneform disease consistent with chloracne shall have become manifest to a degree of 10 percent or more within a year after the last date on which a Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Certain chronic diseases, to include leukemia, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the record in light of pertinent legal authority, and resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death and service connection for AML, for accrued benefit purposes is warranted. Initially, the Board notes that the Veteran's DD Form 214 indicates that he had service in the Republic of Vietnam. As the Veteran served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides, to include Agent Orange. The Board notes, however, that AML is not a disability subject to such presumption. 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. In March 2013, the RO obtained a VA medical opinion upon to address whether the Veteran's AML was a B-cell leukemia, which is a disability the VA Secretary has deemed etiologically-related to herbicide exposure, as identified in 38 C.F.R. § 3.309(e). The examiner determined that "AML is not a B-cell leukemia, AML is not a peripheral B-cell type. AML is not a precursor t-cell type. AML is not a peripheral T-cell type. AML is not a myelodysplastic syndrome. AML is not a chronic myeloproliferative disorder." The examiner did not address the relationship, if any, between Veteran's AML and service, to include his presumed exposure to herbicides during service. Notably, the appellant has not claimed, and the evidence does not show, that the Veteran had been diagnosed with any disability presumed to be caused by herbicide exposure under 38 C.F.R. § 3.309(e). In support of her claim, the appellant submitted an August 2014 private opinion by Dr. R. Rohatgi, a physician in hematology and oncology, addressing the Veteran's history of AML and whether such was related to herbicide exposure. Upon review of the Veteran's claims file and pertinent medical literature, Dr. Rohatgi provided a positive nexus opinion between the Veteran's AML and exposure to Agent Orange. In particular, Dr. Rohatgi noted that it was "well-recognized that in previous appeals by veterans in the causation of myelodysplasia, as well as [AML] in the chemical structure of Agent Orange, which is composed of benzene rings, [that such] as likely as not involved exposure to the effects of its components, namely the benzene constituents, which present in [the] form of a contaminant. The effect of benzene as a causative agent for [AML] has been extensively documented in the medical, environmental and toxicology literature." Dr. Rohatgi referred to an attached newsletter from Lancet Oncology, which noted that in June 2001, the U.S. Institute of Medicine released a report linking Agent Orange defoliant used in Vietnam War with AML in veterans' children and quoted three studies investigating the exposure of dioxin and other chemical components of herbicides found in Agent Orange. In summary, Dr. Rohatgi stated that scientific literature indicates that Agent Orange had significant contamination with dioxin, which contained benzene rings and was an analogue of benzene. Dr. Rohatgi continued to point out that it is also significantly associated with myeloid malignancies and extensively documented in the oncology and toxicology literature. Consequently, Dr. Rohatgi opined that the Veteran's diagnosis of AML was at least as likely as not, at least a 50/50 probability, caused from prior exposure to Agent Orange in the early 1970s, particularly in light of the fact that this agent has a very long half-life in human fat tissue. The Board accepts as probative Dr. Rohatgi's August 2014 opinion on the question of whether the AML resulting in the Veteran's death was medically related to his military service. Dr. Rohatgi reviewed the Veteran's medical records and offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Here, however, Dr. Rohatgi's opinion is not contradicted by any medical evidence or opinion of record. As noted, the March 2013 medical opinion includes no comment as to the etiology of the Veteran's AML or his presumed in-service herbicides exposure, and there is otherwise no medical evidence or opinion that directly addresses the conclusions reached by the private physician. Moreover, while Dr. Rohatgi's opinion is not definitive, it has been expressed in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Therefore, given the facts of this case, to include the probative medical opinion noted above, and resolving all reasonable doubt on certain elements of the claims in the appellant's favor, the Board concludes that the criteria for service connection for AML for accrued benefits purposes and service connection for the cause of the Veteran's death are met. (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the Veteran's death is granted. Service connection for AML, for accrued benefit purposes, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs