Citation Nr: 1804522 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-06 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to dependency and indemnity compensation (DIC) (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 William Skowronski, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from April 1968 to April 1971. The Veteran died in February 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). The claims file is now in the jurisdiction of the Little Rock, Arkansas RO. In November 2015, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. At the hearing, the appellant requested, and was granted, a 90-day abeyance period for submission of additional evidence, which was received in February 2016. [A December 2013 statement of the case (SOC) listed additional issues as on appeal, including entitlement to service connection for acute panmyelosis, for accrued benefits purposes, and entitlement to accrued benefits based on a June 2011 rating decision (issued within a year prior to the Veteran's death) that granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), a staged increased rating for posttraumatic stress disorder (PTSD), and Dependents' Educational Assistance. The December 2013 SOC also informed the appellant that the matter of service connection for throat cancer, which was dismissed by a March 2012 Board decision due to the death of the Veteran, was pending before the Board and that she would be substituted as the appellant for purposes of processing the claim to completion because she filed her claim for DIC within a year of the Veteran's death. However, as the DIC claim was received prior to October 6, 2014 (when 38 C.F.R. § 3.1010 became effective and DIC claims were deemed to include a request to substitute) and she did not file a request to substitute in the pending appeal until at least July 2013 (more than one year following the Veteran's death) she cannot be determined to be a substitute in that appeal. In a February 2014 substantive appeal (VA Form 9), the appellant checked the appropriate box to indicate she was appealing all of the issues listed on the SOC, but only provided written argument regarding the matter of entitlement to DIC. At the hearing, the appellant's representative expressly stated only the DIC matter was on appeal, and the appellant did not state otherwise. Notably, following the hearing, the appellant requested a status update regarding her DIC claim (and did not indicate she believed other issues were on appeal before the Board). Accordingly, the Board finds she only intended to perfect the appeal of the DIC matter, and that is the only matter before the Board at this time.] FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era. 2. The Veteran's February 2012 death certificate listed myeloid leukemia as the immediate cause of death. 3. It is reasonably shown that the Veteran's myeloid leukemia was causally related to his exposure to herbicide agents in service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the instant claim. However, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis The death of a Veteran will be considered service connected when the evidence establishes that a service connected disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Certain chronic diseases (including all chronic B-cell leukemias and multiple myeloma) may be service connected on a presumptive basis as due to exposure to herbicides (Agent Orange) in service if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In a November 2011 letter, a VA physician noted acute panmyelosis had been diagnosed. The Veteran's death certificate shows he died in February 2012. Acute myeloid leukemia was listed as the immediate cause of death; head and neck cancer and PTSD were noted to be significant conditions that contributed to death but that did not result in the underlying cause. The appellant has proposed alternate theories of entitlement, including that the Veteran's acute myeloid leukemia was caused by his exposure to Agent Orange in service. The Veteran's service personnel records show he served in Vietnam from July 1969 to July 1970 (during the Vietnam Era). Therefore, he is presumed to have been exposed to herbicide agents/Agent Orange in service. To the extent the appellant contends the Veteran's myeloid leukemia was due to his presumed exposure to herbicide agents in service, the regulations do not provide for presumptive service connection for myeloid leukemia based on exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309 (e). In a November 2013 opinion, a VA examiner opined the myeloid leukemia was not among the diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309. He explained that acute myeloid leukemia is of a myeloid tumor origin and B-cell leukemia is of a separate, lymphoid origin. Accordingly, service connection for the myeloid leukemia on a presumptive basis (under 38 U.S.C.§ 1116) is not warranted. Service connection for myeloid leukemia may nonetheless be established on the basis that such disease resulted from exposure to Agent Orange if affirmative evidence shows such causation. 38 C.F.R. § 3.303(d). Accordingly, what remains for consideration is whether there is probative affirmative evidence that establishes that the Veteran's myeloid leukemia was related to his service, including as due to his acknowledged exposure to herbicide agents therein. In a February 2016 letter, a VA oncologist who treated the Veteran opined his death was caused by his acute myeloid leukemia and suggested such disability was due to his exposure to Agent Orange in service. He explained Agent Orange was produced with a substance that contains benzene, which is known to cause acute myeloid leukemia. The opinion is accompanied by persuasive rationale which cites to established medical principles and factual data. The Board acknowledges the provider's expertise as an oncologist (a cancer specialist) and finds the opinion to be the most probative evidence in this matter. Notably, there is no opinion to the contrary as the November 2013 VA examiner did not opine whether the myeloid leukemia was related to service, only that it was a different disability entity than chronic B-cell leukemia (and not entitled to presumptive service connection. Resolving any remaining reasonable doubt in the appellant's favor (as required under 38 C.F.R. § 3.102), the Board finds that the Veteran died of myeloid leukemia, which probative evidence of record reasonably shows was causally related to his acknowledged exposure to herbicide agents in service. As service connection was warranted for the disease that caused his death, all of the requirements for substantiating the claim of service connection for the cause of his death are met, and service connection for the cause of the Veteran's death is warranted. The Board's grant of service connection for the cause of the Veteran's death renders moot consideration of other theories of entitlement to DIC raised (such as under 38 U.S.C. §§ 1318, 1151). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs