Citation Nr: 18157314 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-24 283 DATE: December 12, 2018 ORDER Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents due to his service in the Republic of Vietnam from August 1970 to July 1971. 2. The Veteran’s death certificate lists his cause of death as cardiac arrest due to or as a result of essential thrombocythemia. 3. The Veteran’s essential thrombocythemia was related to service, to include his exposure to herbicide agents, and substantially contributed to his death. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1951 to July 1971 and with service in the Republic of Vietnam from August 1970 to July 1971. He was awarded the Korean Service Medal, National Defense Service with one Oak Leaf Cluster, Vietnam Service Medal, and Vietnam Campaign Medal. He died in March 1997. The appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Board remanded the case for further evidentiary development. In July 2018, the Board sought an expert opinion in connection with this appeal from the Veterans Health Administration (VHA). It received the requested opinion in November 2018. 1. Entitlement to service connection for the cause of the Veteran’s death. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things, that the Veteran died from a service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of the Veteran’s death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1131 and 1112. A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Service connection for the cause of a Veteran’s death may also be demonstrated by showing that the Veteran’s death was caused by a disability of service origin. In December 2010, the appellant filed a claim of entitlement to service connection for the cause of the Veteran’s death. She believes that the Veteran developed essential thrombocythemia, the condition determined to have caused his death, as a result of Agent Orange exposure in service, and more specifically, as a result of his exposure to benzene, a compound contained within Agent Orange. The appellant also contends the Veteran’s death was due to coronary artery disease, which she attributes to Agent Orange exposure in service. In support of her contentions, the appellant submitted various medical treatise articles which generally discuss essential thrombocythemia but which do not specifically relate such disorder to exposure of herbicide agents. The Veteran served in the Republic of Vietnam and, thus, is presumed to have been exposed to herbicide agents including Agent Orange. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure, i.e. ischemic heart disease to include coronary artery disease. Essential thrombocythemia, however, is not a condition that has been determined to have a statistically significant association with exposure to herbicide agents. That notwithstanding, service connection may be granted if it is determined that in this particular case, it is at least as likely as not that the condition developed as a result of exposure to herbicide agents, or is otherwise related to any other incident or injury in service. The Veteran’s death certificate indicates that the immediate cause of death was cardiac arrest, which was due to or a consequence of essential thrombocythemia. At the time of his death, none of the Veteran’s conditions listed on the death certificate were service-connected. The Veteran’s service treatment records are absent complaints of, treatment for, or evidence of signs and symptoms consistent with a diagnosis of essential thrombocythemia or coronary artery disease. However, on reenlistment examination in March 1963 the Veteran had an elevated blood pressure reading of 128/86. In September 1966, the Veteran was noted to have a blood pressure reading of 132/78. His blood pressure reading at the June 1970 examination was 120/80. The February 1971 separation examination notes the Veteran had borderline elevated blood pressure of 140/90, with annotations noting blood pressure readings of 160/100 when sitting, 140/86 when recumbent, and 146/90 when standing. Post-service treatment records document diagnoses of and treatment for essential thrombocythemia, essential thrombocytosis, myelodysplastic syndrome, refractory anemia, myeloproliferative disease, myelodysplasia with a splenectomy. The records also reveal May 1991 diagnoses of essential hypertension and left ventricular hypertrophy, most likely from long-standing hypertension. A February 1993 CT scan also revealed coronary artery calcification. The Veteran’s private physician submitted statements in January 2012 and September 2015 opining that the Veteran’s essential thrombocythemia and coronary artery disease more likely than not were related to his military service and presumed exposure to Agent Orange, as Agent Orange contains the carcinogen benzene that leads to these diseases. These opinions unfortunately were not supported by an adequate rationale that explained why the conclusions were reached, and, as such are insufficient. The June 2013 VA clinician opined that that the Veteran’s essential thrombocythemia was not related to one of the recognized B-cell or hairy cell lymphomas for which service connection is presumptive when exposed to Agent Orange. He explained that the Veteran’s essential thrombocythemia is a disorder of the bone marrow in the same family of disorders as chronic myelogenous leukemia, polycythemia vera, and primary myelofibrosis. He further reasoned that the appellant’s contention that the Veteran underwent a splenectomy due to essential thrombocythemia and that this is consistent with a diagnosis of chronic lymphocytic leukemia is inaccurate as similar treatments may be appropriate for a variety of diseases. However, in so concluding, the clinician did not address whether the Veteran’s essential thrombocythemia nevertheless was directly related to the Veteran’s Agent Orange exposure. As for coronary artery disease, the June 2016 VA clinician opined that the Veteran did not have a diagnosis of coronary artery disease since a CT scan is not a diagnostic test for coronary artery disease and medical records showed no evidence of treatment or diagnosis of coronary artery disease. However, the clinician failed to address the Veteran’s diagnosis of hypertension and left ventricular hypertrophy or his doctor’s statement that the Veteran was diagnosed with coronary artery disease. The clinician also opined that the Veteran’s hypertension did not cause or contribute to the Veteran’s death because, despite the Veteran’s elevated blood pressure in service and having met the criteria of three elevated blood pressure readings on a least two separate occasions to support a diagnosis of hypertension, he was not diagnosed with or treated for hypertension in service. The Board points out that the examiner’s rationale relied on the lack of treatment during service which is not a permissible basis for a negative opinion under VA law. The VA clinician also did not consider the Veteran’s presumed exposure to certain herbicide agents, such as Agent Orange, in rendering his opinions regarding coronary artery disease or hypertension. Neither the June 2013 clinician nor the June 2016 clinician addressed the medical treatise articles submitted by the appellant. In light of the above, the Board sought another opinion which was obtained in February 2018 from the earlier June 2016 clinician. The clinician reiterated his opinion and rationale that the Veteran did not have a diagnosis of coronary artery disease. He further opined that hypertension was related to service and recanted his previous opinion in this regard but determined that hypertension did not cause the Veteran’s death as there was no evidence of progression or complications from hypertension prior to his death. As for the Veteran’s hematologic disorder, the clinician opined that this was less likely than not related to service, including his presumed exposure to Agent Orange, as “benzene does not emerge from dioxin, whose three-ring structure is extremely stable and resistant to metabolism” but provided no further context or explanation for this statement. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”) As noted above, the Board sought a VHA expert medical opinion from a hematologist or oncologist in July 2018, and the opinion was provided in November 2018. The hematologist-oncologist opined that it is as likely as not that the exposure to Agent Orange and/or other herbicide agents contributed to the development of the Veteran’s myeloproliferative neoplasm (MPN), a cancer of the bone marrow stem cell similar to other leukemias. The expert opined that the Veteran’s diagnosis of the MPN essential thrombocythemia (thrombocytosis) is convincing and increased his risk of having coronary artery disease and thromboembolic disease. The expert concluded that the Veteran’s stroke was directly related to his MPN. He further opined that the Veteran’s need for splenectomy was related to his MPN and suggests an aggressive form of the disease. After review of the record, the Board finds that service connection for the cause of the Veteran’s death is warranted. The Board finds the positive opinion of the November 2018 VHA expert, provided after reviewing the claims file, is highly probative as it reflects consideration of all relevant facts. The clinician provided a detailed rationale for the conclusion reached. His opinion is supported by his careful assessment of the Veteran’s specific history, which finds that exposure to Agent Orange and/or other herbicide agents contributed to the development of the Veteran’s myeloproliferative neoplasm, specifically essential thrombocythemia, that was similar to other leukemias and was the cause of the Veteran’s death. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no competent medical opinion of record to the contrary. The Board accordingly finds that the evidence of record for and against the claim is at least in relative equipoise. Resolving doubt in favor of the appellant, the claim of entitlement to service connection for cause of the Veteran’s death is granted. 38 U.S.C. §§ 1110, 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel