Citation Nr: 18148069 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-29 854 DATE: November 6, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in May 2014 due to fungal pneumonia caused by acute myeloid leukemia and myelodysplastic syndrome. 2. At the time of his death in May 2014, the Veteran was service-connected for diabetes mellitus. 3. The Veteran’s death caused by acute myeloid leukemia is etiologically related to his exposure to herbicide agents and his active duty service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death has been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967 with service in the Republic of Vietnam. He was a recipient of the Bronze Star medal. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Entitlement to service connection for the cause of the Veteran's death The Veteran died on May [redacted], 2014, and the appellant is his surviving spouse. The record reflects the Veteran and the appellant were married on September [redacted], 1984, see Marriage Certificate, and there is no evidence of record that shows the Veteran and appellant did not have continuous cohabitation, nor that the appellant remarried after the Veteran’s death. Therefore, the appellant meets the requirements for a surviving spouse, and is eligible to make this claim for VA purposes. The death certificate lists the Veteran’s cause of death as fungal pneumonia caused by acute myeloid leukemia and myelodysplastic syndrome. Regarding a Veteran’s death, certain enumerated survivors are eligible for compensation if the death is found to be service connected. The evidence must show that a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of the Veteran’s death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death. Rather, it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases, including leukemia, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If the Veteran meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, several diseases are presumed to be related to herbicide exposure. 38 C.F.R. § 3.309(e). VA regulations provide that if a Veteran was exposed to herbicides 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 herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). At the time of the Veteran’s death, the Veteran was service-connected for diabetes mellitus. Significantly, this service-connected disability is not listed as a primary or contributory cause of death on the Veteran’s death certificate. Furthermore, the appellant does not contend nor does the record show that the Veteran’s service-connected disability caused, aggravated or contributed substantially or materially to the Veteran’s death. There is no medical evidence of record showing that the Veteran’s service-connected disability had increased in severity prior to his death, caused or contributed to the Veteran’s fungal pneumonia, acute myeloid leukemia, or myelodysplastic syndrome; nor a showing that the Veteran was totally and permanently disabled due to his service-connected disability alone. Therefore, the Board finds there is no relationship between the Veteran’s service-connected disability and the cause of his death. However, the appellant contends that the Veteran’s contributory cause of death, acute myeloid leukemia, should be directly service-connected, as there is a causal link between the Veteran’s death and his exposure to herbicide agents while serving in Vietnam. I. Chronic Disease Presumption Service connection is not warranted for the cause of the Veteran’s death as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 and 3.309. The medical evidence establishes that the Veteran’s death was caused by acute myeloid leukemia and myelodysplastic syndrome; however, the record shows that these conditions were first diagnosed in March 2014 and September 2012, respectively, both of which are more than 40 years after the Veteran’s separation from active duty service. As noted above and in this case, chronic diseases, such as leukemia, are only subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran’s acute myeloid leukemia and myelodysplastic syndrome were not incurred until decades after service and presumptive service connection for these disabilities as a chronic disease is not warranted. II. Herbicide Exposure Service connection is not warranted for acute myeloid leukemia and myelodysplastic syndrome as due to exposure to herbicide agents on a presumptive basis. Service records establish that the Veteran served in Vietnam from December 1965 to December 1967. His exposure to herbicide agents is therefore presumed. See 38 U.S.C. §§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) are disabilities associated with exposure to herbicide agents and service connection is warranted on a presumptive basis if the Veteran was exposed to an herbicide agent during active duty service and the disability manifests to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6). However, in this case, the Veteran’s acute myeloid leukemia and myelodysplastic syndrome are not classified as a chronic B-Cell leukemia (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) for VA purposes of satisfying presumptive service connection. In a March 2015 VA medical opinion, the examiner specifically noted that the “Veteran’s myelodysplastic syndrome and acute myeloid leukemia are not considered chronic B-Cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), therefore not subject to presumptive consideration for herbicide exposure.” See C&P Exam, March 2015. Since there is no medical evidence of record that disputes this opinion, the Board finds that presumptive service connection for these disabilities as due to herbicide exposure is not warranted. III. Service Connection on a Direct Basis Although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does support a conclusion that the Veteran’s death caused by acute myeloid leukemia was directly related to his herbicide exposure in service. As mentioned above, it is presumed that the Veteran was exposed to an herbicide agent while on active duty service in Vietnam. The appellant contends that the Veteran’s death was directly caused by exposure to Agent Orange. In support of her claim, the appellant submitted a medical opinion from a doctor from Roswell Park Cancer Institute, who treated the Veteran for his diagnosed disability, acute myeloid leukemia. The doctor opined that the Veteran’s acute myeloid leukemia “is more likely than not related to his chemical exposure to Agent Orange during the Vietnam war and on Army bases where he served.” See Letter, dated May 2015. The doctor supported his conclusion by stating that he thoroughly reviewed all available and pertinent records, including the Veteran’s service treatment records, as well as researched the existing literature regarding possible associations of exposure to Agent Orange and acute myeloid leukemia. Based on this, the doctor further noted that the contamination of these compounds with benzene (a well-established causative agent in acute myeloid leukemia) is highly suggestive of a causative link between exposure to Agent Orange and the development of acute myeloid leukemia. The Board finds this medical opinion adequate for purposes of adjudicating this claim, and notes that the record does not reflect any other opinion to the contrary on a direct basis; therefore, the Board finds the medical opinion from Roswell Park Cancer Institute to also be competent, credible and highly probative. The doctor was personally treating the Veteran for his acute myeloid leukemia, and the opinion given was based on review of all pertinent evidence, including the Veteran’s service records. Additionally, the opinion provides a rationale supported by a clear conclusion based on the doctor’s medical expertise and literary research on the causation of the Veteran’s disability and exposure to Agent Orange. Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Therefore, given that the May 2015 letter is the only medical evidence of record, on a direct basis, and this medical evidence supports a causal relationship between the Veteran’s herbicide exposure and his acute myeloid leukemia, and resolving all reasonable doubt in favor of the appellant, the   Board finds that direct service connection for the Veteran’s cause of death is warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel