Citation Nr: 18146655 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 17-51 387 DATE: October 31, 2018 ORDER Entitlement to service connection for cause of death due to herbicide exposure is granted. FINDINGS OF FACT The Veteran’s acute myeloid leukemia is related to in-service herbicide exposure. The Veteran’s acute myeloid leukemia was the principal cause of his death. CONCLUSION OF LAW 1. The criteria for service connection for acute myeloid leukemia are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for cause of death due to acute myeloid leukemia are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1949 to October 1967, to include service in Vietnam. This case is on appeal before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Board herein grants in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be discussed. The Veteran passed away on November 1, 2010. His surviving spouse, the Appellant, seeks service connection for cause of death. She alleges that his acute myeloid leukemia (AML), which is listed as the sole cause of death on his death certificate, was related to herbicide exposure during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). 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 (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) 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 if 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. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. Given that the Veteran had qualifying service in Vietnam, the VA concedes herbicide exposure during service. However, the Board notes that AML is not one of the diseases entitled to presumptive service connection due to herbicide exposure under 38 C.F.R. § 3.309(e). Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran is not precluded from establishing service connection where entitlement on a presumptive basis is not warranted, as long as there is proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Dependency and Indemnity Compensation (DIC) is 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(a)(1). In order to establish service connection for cause of 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(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. Id. 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 etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. The appellant asserts that the Veteran’s AML was caused by herbicide exposure in Vietnam. She points out that he served as an aircraft mechanic, and was thus exposed to benzene. This chemical is also a component of Agent Orange. The appellant also testified that she was unaware of any history of AML or related cancers in the Veteran’s family. See August 2017 DRO hearing. The Veteran’s service treatment records do not contain any references to AML or related treatment. Similarly, the Veteran’s October 1967 separation examination provides no indications of cancer. Indeed, the record indicates that the Veteran was not diagnosed with AML until October 2009. He subsequently underwent chemotherapy. The Veteran passed away on November 1, 2010. His death certificate lists AML as the only cause of death. In May 2012, Dr. E.K., a professor of hematology at Yale University School of Medicine, wrote a letter on behalf of J.V., another veteran seeking service connection for AML due to herbicide exposure. Dr. E.K. confirmed that benzene is a chemical component of Agent Orange, and opined that the AML from which J.V. suffered was more likely than not caused by his exposure to Agent Orange in service. To support this conclusion, Dr. E.K. cited to medical literature confirming that benzene exposure is an accepted precursor of acute complex leukemias, such as AML. The VA solicited a consultative medical opinion in March 2015. The examiner reviewed the claims file, noting AML as the cause of the Veteran’s death. However, the examiner opined that the Veteran’s AML was not related to an in-service event, injury, or illness. This conclusion was based on the fact that AML is, by definition, not a B-cell leukemia. Additionally, the examiner found that AML is not a precursor to any B-cell type or peripheral B-cell type leukemia. Rather, it is an acute myeloproliferative disorder. In September 2017, Dr. G.V., a private physician who treated the Veteran for many years prior to his death, opined that exposure to Agent Orange was “more likely than not and with a reasonable degree of medical certainty” the cause of the Veteran’s AML. Dr. G.V. indicated that he arrived at this conclusion because, prior to his death, the Veteran repeatedly told him about being exposed to Agent Orange residue on the exteriors of aircraft during his maintenance responsibilities. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence supports a finding of service connection for cause of death due to herbicide exposure. Although the Appellant may not rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to establish service connection for the Veteran’s AML, entitlement may still be granted with proof of direct causation. Combee, 34 F.3d at 1043-1044. Here, the Board finds that the evidence of record satisfies the 3-part test set forth in Hickson. The first two elements of the Hickson analysis require the existence of a current disability and an in-service event, injury, or disease. The Board notes that the Veteran was diagnosed with AML in October 2009. Furthermore, given that the Veteran had qualifying service in Vietnam, his exposure to certain herbicides, including Agent Orange, is presumed. The final prong of the Hickson test requires evidence of a nexus between the condition at issue and the in-service event, injury, or disease. The Board notes that the March 2015 VA consultative examiner opined that the Veteran’s AML was less likely than not related to service because AML is not a type of B-cell leukemia, nor a pre-cursor to any B-cell or peripheral B-cell type leukemias. However, the Board assigns little probative value to the opinion of the March 2015 VA examiner because it did not address the central question of whether exposure to certain herbicide agents could have caused the Veteran’s AML. By contrast, the opinions provided by Dr. E.K. and Dr. G.V. confirm a link between AML and Agent Orange, or at least some of the chemicals comprising it. As such, the Board finds that the opinions of Dr. E.K. and Dr. G.V. are entitled to great evidentiary weight, and hereby adopts their conclusion that the Veteran’s AML was caused by his in-service exposure to certain herbicide agents. Lastly, in order to qualify for DIC, the Appellant must show that the Veteran died from a service-connected disability. For the reasons explained above, the Board concludes that the Veteran’s AML was related to service. As such, it is now considered a service-connected disability. Moreover, the Veteran’s November 2010 death certificate lists AML as the sole cause of death. Therefore, the Board concludes that the Veteran’s AML was the principal cause of his death, which entitles the Appellant to service connection for cause of death due to herbicide exposure. Accordingly, the claim is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel