Citation Nr: 18143189 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 14-09 373 DATE: October 18, 2018 ORDER Entitlement to service connection for myelomonocyte acute myeloid leukemia, myelodysplastic syndrome (MDS), and/or B cell leukemia is granted. Entitlement to service connection for the cause of the Veteran's death is granted. REMANDED Entitlement to service connection for facial skin cancer is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his development of myelodysplastic syndrome (MDS) is related, at least in part, to his in-service exposure to Agent Orange. 2. A May 2016 certificate of death indicates that the Veteran died on May [redacted], 2016, at the age of 70. The certificate of death lists the immediate cause of death as intractable myelodysplastic syndrome (with pancytopenia) and other significant conditions contributing to death but not resulting in the underlying cause as paroxysmal atrial fibrillation, chronic obstructive pulmonary disease, and emphysema. 3. Service connection is currently in effect for MDS, pes planus, neck scars, a scar on the left hand, and a fragment wound in the posterior neck. 4. The May 2016 certificate of death shows that the Veteran’s service-connected MDS was the cause of his death. CONCLUSIONS OF LAW 1. The Veteran’s MDS was the result of in-service exposure to Agent Orange. 38 U.S.C. §§ 1101, 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. A disability incurred in active military service contributed substantially and materially to cause the Veteran’s death. 38 U.S.C. §§ 1110, 1116, 1310, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1967. The Veteran passed away in May 2016. The appellant in this case is the Veteran’s surviving spouse, who is properly substituted for the Veteran in accordance with the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008); 79 Fed. Reg. 52977 (September 5, 2014) (codified at 38 C.F.R. § 3.1010) (2015)). Under this statute, an eligible person may process any pending claims to completion following the death of a veteran. Such request must be filed not later than one year after the date of the Veteran’s death and, as provided for in the provision, a person eligible for this substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title....” Id; 38 U.S.C. § 5121A. The appellant filed a request for substitution in July 2016, within a year from the death of the Veteran, and the agency of original jurisdiction (AOJ) granted the request in May 2018. Thus, the claims for are properly before the Board with the appellant substituting for the deceased Veteran. Since the RO last considered the appellant’s claims in December 2015 and April 2018, the appellant has submitted additional pertinent evidence. In August 2018, the appellant submitted a waiver of RO review of that evidence. 38 C.F.R. § 20.1304. Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues involving the claim for entitlement to service connection for MDS and the claim for entitlement to service connection for the cause of the Veteran’s death. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. This is so because the Board is taking action favorable to the appellant by granting these issues. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). 1. Entitlement to service connection for myelomonocyte acute myeloid leukemia, myelodysplastic syndrome (MDS), and/or B cell leukemia Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The appellant contends that service connection is warranted for the Veteran’s MDS or myelomonocyte acute myeloid leukemia based upon in-service exposure to herbicide agents. VA regulations provide that if a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; diabetes mellitus, type 2; 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; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 3.309. VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia, other than chronic lymphocytic leukemia (CLL); abnormal sperm parameters and infertility; Parkinson’s Disease and Parkinsonism; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; AL amyloidosis (also referred to as primary amyloidosis); endometriosis; adverse effects on thyroid homeostasis; and, any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed. Reg. 59232 (November 2, 1999). A “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in the Republic of Vietnam from January 1966 to January 1967; therefore, he is presumed to have been exposed to Agent Orange during his active duty service. However, the Veteran’s MDS and myelomonocyte acute myeloid leukemia are not among the list of diseases or disorders for which presumptive service connection may be awarded. Accordingly, entitlement to service connection for MDS or myelomonocyte acute myeloid leukemia based on in-service exposure to Agent Orange is not warranted on a presumptive basis. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). There are two medical opinions addressing the etiology of the Veteran’s MDS in the claims file. In November 2105, the Veteran underwent a VA medical examination. The Veteran explained that his MDS was found in 2006 by his family physician as part of a routine examination. He noted that the disease progressed and that eventually he underwent chemotherapy. The examiner performed a physical examination and diagnosed myelodysplastic syndrome and noted an onset date of 2006. After reviewing the claims file, the examiner opined that it was less likely than not that the Veteran’s MDS was related to his active duty service because there was “no mention in the medical records of this veteran being exposed to herbicides, hence no in service correlation can be made to the diagnosis of MDS.” In July 2018, J. F., M.D. provided a medical opinion linking the Veteran’s MDS to his in-service exposure to Agent Orange. Dr. J.F. opined that it was at least as likely as not that the Veteran’s MDS was due to Agent Orange exposure during service. Dr. J.F. explained that two components of Agent Orange – benzene and dioxin – are both linked to MDS, although there is a clearer association in the medical literature between benzene and Agent Orange. He noted that scientific statistical studies have identified a strong association between benzene exposure and the later development of both myelodysplastic syndrome and acute myelodysplasia. Additionally, he described a link between dioxin and MDS, as dioxin causes malignancies indirectly by creating improper activity levels in genes which leads to excessive levels of normal proteins that can convert chemicals in the body and environment into carcinogens, significantly modifying the actions of dioxin on DNA. Dr. J.F.’s opinions are supported by citations to medical studies and literature. After thorough consideration of the pertinent evidence of record, the Board concludes that service connection is warranted for MDS. The appellant has provided competent and credible medical evidence linking the Veteran’s MDS to his in-service exposure to Agent Orange. Although the November 2015 VA examiner opined that it was less likely than not that the Veteran’s MDS was related to his active duty service, the VA examiner’s rationale was based on the finding that there was “no mention in the medical records of this veteran being exposed to herbicides . . . .” However, as noted above, this is incorrect, as the Veteran is presumed to have been exposed to Agent Orange based upon his service in Vietnam during the applicable time period. Accordingly, the Board does not afford the November 2015 opinion significant probative value. In contrast, the July 2018 private medical opinion provides a comprehensive and well-reasoned rationale with citations to applicable medical studies and literature as well as the medical evidence in the claims file. Accordingly, the weight of the probative evidence shows that the Veteran’s MDS was caused or incurred by his active duty service. 2. Entitlement to service connection for the cause of the Veteran's death VA death benefits are payable to the surviving spouse of a veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; 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 disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312(b), (c). The Veteran’s death certificate shows that the primary cause of his death was intractable MDS with pancytopenia. As the determination above grants service connection for the MDS, the requirements for establishing service connection for the cause of his death are met; service connection for the cause of the Veteran’s death is warranted. REASONS FOR REMAND 1. Entitlement to service connection for facial skin cancer is remanded. In November 2015, the Veteran underwent a VA examination to determine the etiology of his facial skin cancer. The November 2015 VA examiner diagnosed basal carcinoma and squamous cell carcinoma and opined that it was less likely than not that the Veteran’s skin cancer was related to his active duty service because there was “no mention in the medical records of this veteran being exposed to herbicides, hence no in service correlation can be made to the diagnosis of skin cancers.” However, this is factually inaccurate, as the Veteran’s service personnel records confirm that he served in the Republic of Vietnam from January 1966 through January 1967; thus, he is presumed to have been exposed to herbicide agents during active duty service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, the appellant’s claim is remanded to obtain a VA opinion as to the etiology of the Veteran’s facial skin cancers based upon accurate review of the facts in the claims file. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder is remanded. In an August 2018 brief, the Veteran’s representative raised a new theory of entitlement for the Veteran’s diagnosed psychiatric disability; that of whether the acquired psychiatric disability was caused or aggravated by his MDS. As service connection for MDS has been granted herein, the claim of entitlement to service connection for an acquired psychiatric disability is remanded for appropriate development and consideration of this new theory of entitlement. In that regard, the RO should obtain a VA opinion to determine whether the any of the psychiatric disorders diagnosed during the Veteran’s lifetime are etiologically related to active duty service or to service-connected MDS. The matters are REMANDED for the following action: 1. Obtain a new VA opinion to determine the nature and etiology of the Veteran’s facial skin cancers. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service evidence, and the Veteran’s lay statements, the examiner should provide an opinion as to whether it is it at least as likely as not (e.g., a 50 percent probability or greater) that the skin cancers diagnosed during the Veteran’s lifetime were caused by or incurred during his active duty service, to include his confirmed exposure to Agent Orange during military service. A complete rationale must be provided for the opinions proffered. 2. Obtain a VA opinion to determine the nature and etiology of all psychiatric disorders diagnosed during the Veteran’s lifetime. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service evidence, and the Veteran’s lay statements, the examiner should provide an opinion as to whether it is it at least as likely as not (e.g., a 50 percent probability or greater) that any psychiatric disorder diagnosed during the Veteran’s lifetime were caused or aggravated by his service-connected MDS. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. A complete rationale must be provided for all opinions proffered. 3. Thereafter, the RO should readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the RO must issue a Supplemental Statement of the Case. After the appellant and her representative have had an adequate opportunity to respond, the RO must return the appeal to the Board. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel