Citation Nr: 18153057 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-19 776A DATE: November 28, 2018 ORDER Entitlement to service connection for acute myeloid leukemia based on conceded herbicide agent exposure is granted. Entitlement to an effective date of May 1, 2016 for the award of service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran served in Vietnam and was stationed at Camp Lejeune for more than 30 days from September 1967 to December 1967, and therefore is presumed to have been exposed to contaminated water and herbicides during service. 2. The Veteran was diagnosed with acute myeloid leukemia in November 2015, which ultimately caused his death in May 2016. 3. The evidence is in equipoise as to whether the Veteran’s acute myeloid leukemia is related to conceded herbicide agent exposure during his Vietnam service. 4. On June 10, 2016, VA received a completed VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits from the appellant. 5. VA awarded service connection for cause of the Veteran’s death, effective March 14, 2017, the date adult leukemia was added to the list of diseases for presumptive service connection due to exposure to contaminants in the water supply at Camp Lejeune. CONCLUSIONS OF LAW 1. Service connection for acute myeloid leukemia as to due to herbicide agent exposure is granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an effective date earlier of May 1, 2016 for the award of service connection for cause of the Veteran’s death are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1967 to May 1970 with combat service in Vietnam. He died in May 2016. The appellant is his surviving spouse. She has been substituted as the claimant for the purposes of processing the above-listed service connection claim to completion. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2016 and June 2018 rating decisions of the of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for acute myeloid leukemia based on herbicide agent exposure is granted. Service connection will 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. Here, the Veteran was diagnosed with acute myeloid leukemia, and his exposure to herbicide agents during service is presumed based on his Vietnam service. 38 C.F.R. § 3.307(a)(6)(iii). Moreover, the competent evidence is in equipoise as to whether the Veteran’s acute myeloid leukemia was related to his herbicide agent exposure. See April 2016 opinion from G.B., DO, FACP; compare with September 2016 VA examiner’s opinion. Affording the Veteran the benefit of the doubt, service connection for acute myeloid leukemia based on herbicide agent exposure is granted. 2. Entitlement to an effective date of May 1, 2016 for the award of service connection for the cause of the Veteran’s death is granted. With regard to benefits for a service-connected death after separation from service, the effective date will be the first day of the month in which the veteran’s death occurred if the claim is received within one year after the date of death; otherwise, it will be the date of the receipt of the claim. See 38 C.F.R. § 3.400(c)(2). Where compensation is awarded pursuant to a liberalizing law, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or regulation. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). The appellant seeks an effective date earlier than March 14, 2017 for the award of service connection for the cause of the Veteran’s death. The record shows the Veteran died in May 2016. His death certificate listed acute myeloid leukemia as the immediate cause of death. The appellant filed a claim seeking service connection for the cause of the Veteran’s death in June 2016, one month after the Veteran’s death, which was denied in a September 2016 rating decision. During the appeal period, 38 C.F.R. § 3.309(f) was amended to provide presumptive service connection for certain diseases, including adult leukemia, for veterans stationed at Camp Lejeune between August 1, 1953 and December 31, 1987. The regulation was effective March 14, 2017. 82 Fed. Reg. at 4,185. Based on this liberalizing law, in a May 2017 rating decision, the RO granted presumptive service connection for the cause of death and assigned an effective date of March 14, 2017. The Board emphasizes that the RO’s award of service connection for the cause of the Veteran’s death did not render the above-discussed claim for entitlement to service connection for acute myeloid leukemia based on herbicide agent exposure moot, as the Board’s favorable disposition on this alternative theory of entitlement allows for assignment of an earlier effective date in this case. In other words, awarding service connection for acute myeloid leukemia based on herbicide agent exposure allows for application of 38 C.F.R. § 3.400(c)(2) over 38 C.F.R. § 3.114(a)(1) to assign the earliest available effective date available by law for DIC benefits, or May 1, 2016. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel