Citation Nr: 18151733 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-40 745A DATE: November 20, 2018 ORDER Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in March 2015; the appellant is the Veteran’s surviving spouse. 2. The death certificate lists the immediate cause of death as acute myelogenous leukemia (AML) with myelofibrosis with myeloid metaplasia as a significant condition contributing to death. 3. The Veteran had qualifying service in the Republic of Vietnam from April 1969 to March 1970; thus, the Veteran’s exposure to Agent Orange during service may be presumed. 4. Prior to death, the Veteran was diagnosed with myelofibrosis which developed into AML. 5. The Veteran’s myelofibrosis and AML were etiologically related to exposure to Agent Orange during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1968 to March 1970. The Veteran died in March 2015. The appellant is the surviving spouse of the Veteran. Service Connection for the Cause of the Veteran’s Death Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312. In order to establish service connection for the cause of a 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. 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. Contributory cause of death is inherently one not 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. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. In this case, the cause of the Veteran’s death is AML, which the evidence shows is not a chronic B-cell leukemia. Acute myelogenous leukemia is not listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), 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 (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Accordingly, acute myelogenous leukemia is not a disease for which presumptive service connection based on exposure to herbicides may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The appellant, the Veteran’s surviving spouse, seeks service connection for the cause of the Veteran’s death. The appellant asserts that exposure to Agent Orange during service caused the Veteran to develop AML, and that service connection should be granted for this disability. First, the evidence of record reflects the Veteran died in March 2015. The death certificate lists the immediate cause of death as acute myelogenous leukemia with myelofibrosis with myeloid metaplasia as a significant condition contributing to death. At the time of death, the Veteran was not service connected for any disabilities; thus, a service-connected disability was not the cause of the Veteran’s death. On the question of whether the cause of the Veteran’s death – acute myelogenous leukemia with myelofibrosis with myeloid metaplasia – was related to any disease, injury, or other incident of service, the Board finds that, because the Veteran served in the Republic of Vietnam (Vietnam) during the Vietnam War Era, he is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although the Veteran is presumed to have been exposed to herbicide agents during service, AML is not listed as a disease associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e); therefore, service connection for AML may not be granted on a presumptive basis. See June 2015 VA medical opinion (stating that AML is not considered a form of B cell leukemia). Notwithstanding the foregoing, 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. 2725, 2727-29 (1984), does not preclude establishment of service connection for AML with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for claimed residuals of exposure to herbicide agents may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran’s AML was etiologically related to Agent Orange exposure during active service. The record contains a June 2015 VA medical opinion wherein the VA examiner opined that AML is not considered a form of B cell leukemia, a myelodysplastic syndrome, or a chronic myeloproliferative disorder; therefore, service connection on a presumptive basis may not be granted. However, as discussed above, service connection may still be granted on a direct basis. Additionally, the June 2015 VA examiner stated that there is no scientific evidence that death from AML is increased in individuals exposed to herbicide agents; however, the VA examiner did not provide an opinion on whether the Veteran’s AML was directly caused by Agent Orange exposure. On the question of direct relationship to service, the record includes a May 2015 private medical opinion from the Veteran’s treating oncologist, Dr. L.Z. In the May 2015 private medical opinion, Dr. L.Z. stated that the Veteran was diagnosed with myelofibrosis, which developed into AML, and that it is at least as likely as not that the Veteran’s AML was caused by exposure to Agent Orange during active service. Although Dr. L.Z. did not provide a rationale for the opinion, the Board finds that the determination that the Veteran’s AML was the result of Agent Orange exposure by his treating oncologist, who has knowledge of the Veteran’s specific medical history, to be highly probative evidence of an etiological relationship. For these reasons, and resolving reasonable doubt in the appellant’s favor, the Board finds that service connection for the cause of the Veteran’s death due to AML is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel