Citation Nr: 1821817 Decision Date: 04/09/18 Archive Date: 04/19/18 DOCKET NO. 15-03 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for acute myelogenous leukemia (previously rated as myelodysplastic syndrome), to include as a result of exposure to herbicides. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran had active service from October 1946 to February 1948, and July 1953 to November 1973. The Veteran died in September 2010, and the appellant is the Veteran's surviving spouse. The appellant has been accepted as a substitute claimant for purposes of processing the claims to completion pursuant to 38 U.S.C. § 5121A (2012). See January 2016 Letter to Appellant. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was most recently before the Board in January 2016, when claims listed above where were remanded for further development. A claim for entitlement to an effective date prior to May 21, 2001, for the award of service connection for bilateral hearing loss was remanded to accord the RO an opportunity to issue a statement of the case (SOC) to the appellant and to allow her to perfect the appeal if she so desired. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The RO issued an SOC in December 2017, but the record does not reflect that the appellant perfected her appeal to the Board by timely filing a substantive appeal on this issue. Thus, the Board has no jurisdiction over the earlier effective date claim for the award of service connection for bilateral hearing loss. 38 C.F.R. § 20.302(b). With respect to the claim for entitlement to service connection for acute myelogenous leukemia and entitlement to service connection for the cause of the Veteran's death, additional development was completed and a December 2017 supplemental statement of the case was issued; the case is once again before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicides including Agent Orange; acute myelogenous leukemia is not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 2. The preponderance of the competent and credible evidence of record fails to establish that acute myelogenous leukemia manifested in service or within one year of service discharge or that it is otherwise etiologically related to the Veteran's active service (including his in service exposure to herbicides). 3. In September 2010, the Veteran died of complications caused by acute non-lymphocytic leukemia. 4. Prior to the Veteran's death, service connection was in effect for: coronary artery disease, evaluated as 60 percent disabling; degenerative disc disease L4-5 and L5-S1, evaluated as 40 percent disabling; type II diabetes mellitus, evaluated as 20 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; dermatitis of the right hand, evaluated as noncompensable; and bilateral tympanic membrane perforations, evaluated as noncompensable. 5. Service-connected coronary artery disease, degenerative disc disease L4-5 and L5-S1, type II diabetes mellitus, bilateral hearing loss, tinnitus, dermatitis of the right hand, and bilateral tympanic membrane perforations did not cause the Veteran's death or contribute materially or substantially to the cause of death. 6. The disorder that resulted in the Veteran's death, acute non-lymphocytic leukemia, is unrelated to his active duty service. CONCLUSIONS OF LAW 1. Acute myelogenous leukemia was not incurred or aggravated in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Veteran died in September 2010. Prior to his death, he had a pending service connection claim for acute myelogenous leukemia. Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The newly revised statute provides that, "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121A of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C. § 5121A. The RO has granted the appellant's request to be substituted as the claimant for the purposes of processing this appeal to completion. The Board notes that unlike an accrued benefits claim, the record is not closed in a substitution claim on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. See VA Fast Letter 10-30 (August 2010). The VA Fast Letter 10-30, in addition to a proposed new regulation for inclusion in 38 C.F.R. Parts 3, 14, and 20 [76 Fed. Reg. 8,666-74 (February 15, 2011)], provides that if proper notice was sent to the original appellant, in this case the Veteran, further notice need not be sent to the substituted party. Here, proper notice was sent to the Veteran; thus, additional notice is not required for the appellant. With respect to the cause of death claim, adequate notice in accordance with Hupp v. Nicholson, 21 Vet. App. 342 (2007), was provided. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, neither the Veteran nor the appellant has indicated any such records, and all pertinent records have been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, VA examinations and the written assertions of the Veteran and appellant. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. A Court or Board remand confers upon the Appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As already noted, the matter was remanded in January 2016. The Board finds there has been substantial compliance with the Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection 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, 1131 (2012). 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden / Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as leukemia, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Applicable regulations provide that a Veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307(a)(1)(6)(iii). The specific statute pertaining to claimed Agent Orange exposure is 38 U.S.C.A. § 1116. Regulations issued pursuant thereto stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) provides that presumptive service connection based on Agent Orange exposure is available for the following diseases: 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); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Here, the appellant claims that the Veteran's acute myelogenous leukemia was the result of his service, to include exposure to herbicides. Essentially, the appellant asserts that service connection for acute myelogenous leukemia is warranted under the theories of direct service connection and presumptive service connection. The Board will first address the appellant's contentions that the Veteran's acute myelogenous leukemia was due to his exposure to herbicides. Records in his claim file reflect that the Veteran served in Vietnam. As such, exposure to herbicides is presumed. Despite his presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not for application. Service connection is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e). As the Veteran's claimed acute myelogenous leukemia is not among those listed under 38 C.F.R. § 3.309(e) an award of presumptive service connection based on herbicide exposure is not warranted. With respect to presumptive service connection under § 3.309(a), in light of the lack of medical evidence reflecting a diagnosis of acute myelogenous leukemia within one year of the Veteran's separation from service, service connection on a presumptive basis for a chronic disorder is also not available. 38 C.F.R. § 3.309 (2017). Next, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the Veteran's acute myelogenous leukemia and in-service herbicide exposure or to any other incident of active service. Review of the record reflects that the Veteran's service treatment records do not show treatment for acute myelogenous leukemia. A June 1973 retirement examination noted a normal clinical evaluation of the lymphatic system. The Veteran stated on his examination that he considered himself to be in excellent health. Next, and more importantly, post-service evidence does not reflect complaints of acute myelogenous leukemia for many years after service discharge. In fact, a March 1974 VA examination report, completed a few months following service separation, reflected a normal evaluation of his lymphatic and hemic systems. Specifically, he was first diagnosed with issues related to acute myelogenous leukemia around June 2009. Such tends to negate a finding for service connection based on direct service incurrence. The Veteran's reported history of continued symptomatology since active service has also been considered but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, records do not reflect problems related to the Veteran's lymphatic or hemic systems for many years following separation from service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This long period without problems weighs against the claim. The value of the Veteran's assertions are additionally diminished, given that there is clinical evidence indicating that his lymphatic system and blood work were normal at the time he left service. Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology of acute myelogenous leukemia since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Continuity of symptomatology has not here been established, either through the competent evidence or through the statements submitted by the Veteran or the appellant. Having determined that the Veteran's alleged clinical history regarding onset and continuity of acute myelogenous leukemia is not consistent with the evidence, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. Consideration has been given to January 2005 and January 2014 private opinions of record. In a January 2005 letter the Veteran's treating doctor noted that the Veteran had been exposed to Agent Orange during the Vietnam War and that he had immune-mediated leukopenia. The doctor noted that the Veteran's leukopenia may, in fact, be related to his exposure as well. The probative value of this "positive" opinion is limited. Significantly, the examiner failed to provide any rationale for his conclusion, and his opinion was speculative in nature. Additionally, another January 2014 opinion was obtained. The doctor noted that he had treated the Veteran from May 2009 to September 2010 and that the Veteran had suffered from accelerated myelodysplastic syndrome that progressed to acute myeloid leukemia. He noted that according to the Veteran's history he had had significant exposure to Agent Orange as a helicopter pilot in Vietnam and that it was the doctor's opinion that this exposure could have contributed to his subsequent development of acute leukemia. Unfortunately, this examiner also failed to provide any rationale for his conclusion, and his opinion was also speculative in nature. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the probative values of the January 2005 and January 2014 private opinions are therefore limited. An additional VA medical opinion was obtained. After reviewing the evidence of record, an August 2017 VA examiner opined that it was less likely than not that the Veteran's acute myelogenous leukemia was related to the Veteran's service, to include exposure to herbicides. The VA examiner referenced the Veteran's service treatment records, VA treatment records, and private treatment records. He noted that there are some known risk factors for developing acute myeloid leukemia including smoking, exposure to certain chemicals (high levels of benzene), certain chemotherapy drugs, radiation exposure, certain blood disorders, genetic syndromes, family history, older age, and male gender. The VA examiner noted that some factors have been studied for a possible link to acute myelogenous leukemia including exposure to electromagnetic fields, work place exposure to diesel, gasoline, certain other chemicals and solvents, and exposure to herbicides. However, the VA examiner noted that so far none of these factors have been linked conclusively to acute myelogenous leukemia and research in these areas is ongoing. The VA examiner noted that the basis for the Veteran's acquisition of his acute myelogenous leukemia was due to his risk factors of his advanced, age, male sex, and prior cigarette smoking. He noted that additionally, the presence of his myelodysplastic syndrome also put him at risk for the development of this type of leukemia. The VA examiner stated that both the myelodysplastic syndrome and acute myelogenous leukemia have the same risk factors. It was noted that the medical literature according to the American Cancer Society does not support that environmental exposures that the Veteran had would have resulted in his leukemia. Finally, he noted that mention had been made of benzene exposure that the Veteran had while on active duty. The VA examiner noted that the Veteran may not have had both a long-term occupational exposure to benzene and a high level of benzene exposure, a risk factor for acute myelogenous leukemia while on active duty. He additionally noted that the Veteran's long term cigarette consumption is associated with benzene exposure which could have resulted in the Veteran developing his leukemia independent of the exposures while on active duty. This clear medical opinion provides evidence against this claim. The Board has carefully considered this issue. The Board finds that the August 2017 VA opinion is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran and appellant, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his acute myelogenous leukemia. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of acute myelogenous leukemia, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Acute myelogenous leukemia is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that specific findings are needed to properly assess and diagnose this disorder. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. III. Cause of Death The appellant seeks service connection for her husband's death, contending that the Veteran's fatal acute non-lymphocytic leukemia, also known as acute myeloid leukemia, was caused by his exposure to Agent Orange. Because the evidence shows that the Veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. As noted above, the Board has denied entitlement to service connection for the Veteran's acute myelogenous leukemia. According to his death certificate, the Veteran died on September [REDACTED], 2010 of acute non-lymphocytic leukemia. Service connection for the cause of a veteran's death may be granted if the evidence shows that a service-connected disability was either the principal or a contributory cause of death of a veteran. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). To show that a service-connected disability contributed to death, the evidence must show that it contributed substantially or materially; or, that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c) (2017). 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. The Veteran was service-connected for coronary artery disease, degenerative disc disease L4-5 and L5-S1, type II diabetes mellitus, bilateral hearing loss, tinnitus, dermatitis of the right hand, and bilateral tympanic membrane perforations. Neither the death certificate nor any other medical evidence of record identifies the service-connected disabilities as having caused or in any way contributed to his death. Thus, the question arises as to whether the Veteran's service-connected disabilities were either debilitating enough in nature, or otherwise of such a complicating nature, that they hastened his death. An August 2017 VA medical opinion was obtained. The VA examiner opined that the Veteran's coronary artery disease, type 2 diabetes mellitus, and degenerative disc disease of the lumbar spine are less likely than not to have caused or contributed to the cause of the Veteran's death. After considering the Veteran's treatment records, the VA examiner noted that the clinical encounters with the Veteran before his diagnosis of acute myeloid leukemia, during his outpatient visits with acute myeloid leukemia, and in his final days with acute myeloid leukemia revealed that there were no issues with coronary artery disease, diabetes mellitus, or lumbar spine degenerative disc disease which adversely affected or compromised his health so as to contribute to his death. A review of the record reflects that a medical nexus has not been demonstrated between any of his service-connected disabilities and his ultimate cause of death. The appellant again provides no evidence to the contrary. Therefore, the Board finds that the Veteran's service-connected disabilities were not a contributory cause of his death. See 38 C.F.R. § 3.312(c) (2017). The appellant's primary contention is that the Veteran's acute non-lymphocytic leukemia, also known as acute myeloid leukemia, was caused by herbicide exposure in service and eventually caused his death. As noted above, the Board has determined that the Veteran's acute myeloid leukemia was not related to service, to include his presumed exposure to herbicides. The Board has already considered the merits of the implicit claim for service connection for acute myeloid leukemia as the Veteran's cause of death. However, it was determined in the decision above that there is no basis to establish service connection for this disability. The Board has considered the appellant's theory that the Veteran's acute myeloid leukemia was caused by herbicide exposure and ultimately led to his death. However, the Board notes that the determination of the cause of the Veteran's death is clearly a matter well outside a layperson's expertise to address. Because the matter at hand requires medical expertise, and as the appellant lacks the requisite medical training to have the expertise to make medical diagnoses or provide opinions on matters regarding medical causation and etiology, her statements in this regard are therefore not entitled to any probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994). While the Board is cognizant of the late Veteran's honorable service and is sympathetic to his widow's situation, her personal belief in the existence of a relationship between the cause of the Veteran's death and his military service, no matter how sincere, is not probative of a nexus to service if unsupported by objective medical evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999). In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the appellant's claim of service connection for the Veteran's cause of death. The late Veteran's service-connected disabilities have not been shown to be causally related to his death or to have contributed materially or substantially to the cause of death. Moreover, his primary cause of death due to acute non-lymphocytic leukemia is unrelated to his military service. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for acute myelogenous leukemia, to include as a result of exposure to herbicides, as a substitute claimant, is denied. Service connection for the cause of the Veteran's death is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs