Citation Nr: 1808807 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-32 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to toxic herbicide agent exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972, to include service in the Republic of Vietnam. As a result of his service, he was awarded a Bronze Star Medal and a Vietnam Service Medal with a Bronze Service Star. The Veteran died in July 2009. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction over this matter is with the RO in Winston-Salem, North Carolina FINDINGS OF FACT 1. The Veteran died in July 2009 and the primary cause of death was acute respiratory distress syndrome, which was a consequence of acute myeloblastic leukemia (AML). 2. The Veteran's AML is related to his exposure to toxic herbicide agents during his military service in Vietnam. CONCLUSION OF LAW The cause of the Veteran's death, to include as due to toxic herbicide agent exposure, is attributable to a disability incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The full award of benefits sought on appeal is being granted at this time. Consequently, any further discussion respecting these duties is not necessary. Cause of Death In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it 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(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. 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. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. Nevertheless, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicide agents used during that time, with "Agent Orange" being the most common. Service connection is presumptively warranted for a veteran who has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, all chronic B-cell leukemias (including, but not limited to hairy-cell leukemia and chronic lymphocytic leukemia), respiratory cancers, and ischemic heart disease. 38 C.F.R. § 3.309(e). In this case, the Appellant asserts that service connection is warranted for the cause of the Veteran's death based on exposure to toxic herbicide agents during his service in the Republic of Vietnam. The Veteran died in July 2009 and the primary cause of death was acute respiratory distress syndrome as a result of AML. The evidence indicates that the Veteran's AML is related to his exposure to toxic herbicide agents during his military service in Vietnam. According to the Veteran's death certificate, the immediate cause of death was adult respiratory distress syndrome, which was a consequence of AML. The Board recognizes that the Veteran served in Vietnam and is presumed to have been exposed to toxic herbicide agents. Importantly, AML is not specifically recognized as a disease associated with exposure to toxic herbicide agents. However, the absence of its inclusion on the list provided by 38 C.F.R. § 3.309(e) does not prohibit service connection. It merely prevents the Board from finding that there is an automatic presumption that the Veteran's AML is related to service. To support the claim, the Appellant submitted two medical opinions in June 2017. The first medical opinion is from Dr. W.L., and states that the Veteran's cause of death is directly connected to exposure to Agent Orange chemicals. Similarly, Dr. D.C. concludes that the Veteran's cause of death could have been linked to Agent Orange exposure. As neither opinion provided a rationale to support their respective conclusions, the Board requested a specialized medical opinion by a physician employed by the Veterans Health Administration (VHA). In December 2017, a VHA hematologist/oncologist provided a medical opinion. In the opinion, the specialist determined that the Veteran's contact with Agent Orange, which has been shown to be contaminated with dioxin 2, 3, 7, 8-tetrachlorodibenzodioxin (TCDD), increases the risk of developing AML. The specialist further concluded that AML is a member of a group of blood cancers that fall into the lymphohematopoietic group of cancers, which have been associated with Agent Orange exposure. Although AML is not recognized as a presumptive disease caused by Agent Orange, the specialist stated that it is solely because the epidemiological studies are not specific enough in their description of individual diseases for the Institute of Medicine to state that they are linked. However, the specialist posited that it was just a matter of time when all leukemias will be included in the list. Acknowledging the specialist's detailed and thorough opinion finding that the Veteran's AML is etiologically related to his exposure to toxic herbicide agents in service and that AML was listed as a primary (principal) cause of death, the Board determines that service connection for the Veteran's cause of death is warranted. ORDER Service connection for the cause of the Veteran's death, to include as due to toxic herbicide agent exposure, is granted. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs