Citation Nr: 18153262 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16 40-890 DATE: November 27, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT 1. The Veteran’s death certificate lists acute myeloid leukemia as the immediate cause of death. 2. Though the Veteran was not service-connected for acute myeloid leukemia at the time of his death, his AML is related to his active service, and caused or contributed to the cause of the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1131, 1310, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1969 to March 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016, rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office. The appellant is the Veteran’s surviving spouse. The appellant’s representative has argued that a timely substantive appeal was filed regarding the substitution claim for entitlement to service connection for acute myeloid/myelogenous leukemia as a result of herbicide exposure. This issue is not before the Board, as a timely appeal was not filed. The SOC was sent January 28, 2016, and the Form 9 was not submitted until July 2016. The representative has argued that a January 2016 NOD (faxed the same day the SOC was mailed) should be construed as a Form 9, however the NOD was completed by the appellant on January 25, 2016, and received by VA on January 28, 2016. In a November 2016 letter, the RO provided notice to the appellant’s attorney that the substantive appeal was not timely. Neither the appellant, nor her attorney, provided a notice of disagreement to the finding as to the timeliness of the substantive appeal. Therefore, the only issue before the Board is the cause of death claim listed on the title page of this decision. 1. 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. 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. 38 C.F.R. § 3.312. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran’s death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(b), (c). Service connection may 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 associated with herbicide exposure for purposes of the presumption: 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, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute 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), but does not include cancer of the tongue. 38 C.F.R. § 3.309(e). Acute myeloid leukemia is not listed among those disorders for which service connection may be presumptively warranted based upon exposure to certain herbicide agents. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232 -243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600 -08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395 -407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258 -260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Notwithstanding the foregoing, a veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The appellant asserts entitlement to service connection for the cause of the Veteran’s death on the basis that the cause of his death was related to or had its onset in service. The Veteran’s certificate of death reflects that acute myeloid leukemia was the immediate cause of his death. The appellant asserts that the Veteran was exposed to herbicides while stationed in Vietnam, and that this exposure caused the acute myeloid leukemia, which is shown to have ultimately caused his death. In this case the service personnel records verify that the Veteran had service in Vietnam from 1970 to 1971. As such, he is presumed to have been exposed to Agent Orange. In January 2015, the Veteran underwent a VA examination, and was diagnosed with acute myelogenous leukemia in July 2014. No opinion was rendered. In an April 2015, statement from Dr. H, it was noted the Veteran’s myelodysplastic syndrome and chronic myelomonocytic leukemia, evolved into acute myelgoneous leukemia, and could be related to exposure to Agent Orange. In January 2016, a VA medical opinion was rendered, and concluded that the Veteran’s acute myeloid leukemia was not incurred in or caused by an in-service injury, event, or illness. The rationale provided was acute myeloid leukemia is not a b-cell leukemia. In August 2018, a medical opinion was received from Dr. G. Dr. G., explained that he is a specialist in the treatment of cancers of the blood and lymphatic system. Dr. G. reviewed the Veteran’s claims file. The Veteran was noted to have begun treatment for acute myeloid leukemia in 2014, received chemotherapy, and then a stem cell transplant. The Veteran served in Vietnam from November 1970 to November 1971. Dr. G. noted there is no period of time following toxin exposure (such as benzene; by interference also agent orange) following which there is no risk of leukemogenesis. Dr. G., explained dioxin has been epidemiologically linked as a cause of both MDS and AML. The VA examiner’s opinion from January 2016, was found faulty in that it ignores the literature concerning dioxin and leukemogensis, in particular the finding that AML is not a b lineage malignancy. However, a review of the literature, definitively demonstrates an increased risk of acute myeloid leukemia in persons exposed to dioxin. Therefore, Dr. G., concluded it is more likely than not that the Veteran’s acute myeloid leukemia was related to Agent Orange exposure during his service in Vietnam. The 2016 VA opinion is of limited probative value, because it seems to rely solely on the fact acute myeloid leukemia is not a b-lineage malignancy and doesn’t discuss other contradictory research. The most recent opinion of Dr. G., is supported by analysis of research studies finding that dioxin exposure has been linked to acute myeloid leukemia. Additionally, there is an opinion from 2015, from Dr. H. indicating there could be a relationship between herbicide exposure and acute myeloid leukemia. The evidence is at least in equipoise as to whether the Veteran’s acute myeloid leukemia is a result of his exposure to AO, while in service. Therefore, resolving reasonable doubt in favor of the appellant, service connection for the Veteran’s cause of death is warranted. (Continued on the next page)   The Board notes that this decision is based on the unique facts of this Veteran’s exposures and circumstances. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel