Citation Nr: 1804062 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-38 611A ) 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. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran had active duty from February 1966 to April 1968. He died in July 2013 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a December 2014 decision, the agency of original jurisdiction (AOJ) granted the appellant's request for burial benefits. As the amount granted was the maximum allowed by law, this is considered a full grant, therefore this issue no longer before the Board for consideration. See 38 C.F.R. § 3.1705 (2017); 38 U.S.C. §§ 2302, 2303 (2012) In November 2017, the appellant testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes that additional evidence has been associated with the record since the issuance of the July 2014 statement of the case and the appellant has not waived AOJ consideration of such evidence. However, with regard to all of the newly received evidence, the Board finds no prejudice to the appellant in proceeding with a decision at this time as her claim is granted in full. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides coincident with his service in the Republic of Vietnam. 2. The Veteran's certificate of death shows that he died in July 2013 with the immediate cause of death listed as acute myelogenous leukemia (AML). 3. The Veteran's acute myelogenous leukemia is related to his herbicide exposure during service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for the cause of the Veteran's death herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Dependency and Indemnity Compensation (DIC) may be awarded to a Veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a) (2017). Service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b) (2017). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, the law provides a presumption of service connection for certain diseases, which does not include acute myelogenous leukemia, that are associated with exposure to herbicide agents, and become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam, or in or near the Korean DMZ during specified periods of time, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a) (6) (2017). 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 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. § 1113 (b), 1116 (2012); 38 C.F.R. § 3.303 (2017). 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. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant contends that the Veteran's death was proximately due to exposure to herbicides, specifically Agent Orange, during his service in the Republic of Vietnam. The Veteran served on active duty from February 1966 to April 1968, with verified service in the Republic of Vietnam. Therefore, he is presumed to have been exposed to herbicides coincident with such service. The death certificate shows the Veteran died in July of 2013 and lists the immediate cause of death as acute myelogenous leukemia. No other causative or contributory conditions were noted. The appellant reports, and medical records show, that the Veteran was diagnosed with acute myelogenous leukemia in July 2013. In November 2013, the appellant submitted a medical opinion indicating that exposure to Agent Orange during service in the Republic of Vietnam likely caused the Veteran's acute myelogenous leukemia. The opinion explained that exposure to benzene, a chemical agent of Agent Orange, is an accepted precursor of complex acute leukemia like acute myelogenous leukemia. The oncologist cited to the Institute of Medicine of the National Academies, 2 Gulf War and Health: Insecticides and Solvents (2003); H. Van den Berghe et al., Chromosome Analysis in Two Unusual Malignant Blood Disorders Presumably Induced by Benzene, 53 Blood 558(1979); and Song-Nian Yin et al, An Expanded Cohort Study of Cancer Among Benzene-exposed Workers in China, 104 ENVIRONMENTAL HEALTH PERSPECTIVES 1339 (Supp. 6 1996) in formulating his opinion. The examiner explained that he reviewed the Institute of Medicine of the National Academies study Veterans and Agent Orange; Update 2010 finding the link between AML and Agent Orange inconclusive (p.396). The examiner stated that this study suggests that AML is associated with exposure to benzene (p.395). Based on this the oncologist stated that in his professional opinion, exposure to benzene, a chemical agent of Agent Orange, is linked to the Veteran's AML. The Board notes that indeed, the Institute of Medicine of the National Academies' recent studied Veterans and Agent Orange: Update 2012 states that benzene exposure is a risk factor for acute myelogenous leukemia (p. 625). The favorable opinion by the Veteran's oncologist is afforded significant probative value, namely because the oncologist is a medical professional who is familiar with the Veteran's medical history, supported his conclusions with reasoned analysis, and is qualified through education, training, or experience to offer a medical opinion. Additionally, the oncologist's opinion is factually accurate, fully articulated, and based on sound reasoning. In the presence of uncontroverted evidence that in-service herbicide exposure caused acute myelogenous leukemia, which ultimately led to the Veteran's death, the Board finds that service connection for the cause of the Veteran's is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs