Citation Nr: 18106965 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 16-00 165 DATE: June 1, 2018 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran passed away in March 1984. The certificate of death lists the immediate cause of death as hemorrhage from respiratory and gastrointestinal tract due to, or as a consequence of, thrombocytopenia and acute myeloblastic leukemia (AML). 2. At the time of the Veteran’s death, the Veteran was not in receipt of service-connected benefits for any disability. 3. The Veteran’s AML did not manifest in service or for many years thereafter and is not otherwise causally or etiologically related to his military service, to include in-service Agent Orange exposure. CONCLUSION OF LAW The requirements for establishing entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1951 to March 1954, and from June 1954 to June 1971, including service in the Republic of Vietnam. The Veteran passed away in March 1984. The appellant in the present appeal is the surviving spouse. This case was most recently before the Board in March 2018, at which time it was remanded for additional development. This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). Service connection for the cause of the Veteran’s death is denied. Duties to Notify and Assist Neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board finds there has been substantial compliance with its March 2018 remand directives. This claim was remanded for an addendum medical opinion. The medical opinion was obtained in April 2018. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis The appellant asserts that the Veteran’s AML was caused by his presumed exposure to Agent Orange. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops one of the disease listed under 38 C.F.R. § 3.309 (e), to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The Veteran’s personnel records documented his service in the Republic of Vietnam. Therefore, the Veteran is presumed to have been exposed to herbicides in service. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes 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, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). A VA examiner in November 2015 found that the Veteran’s AML was not a B-cell leukemia. In April 2018, the VA examiner concluded that AML is a myeloid leukemia, not a B-cell leukemia nor a multiple myeloma for presumptive service connection. The VA examiner explained that AML involves myeloid cells and that multiple myeloma involves plasma cells. As such, the Board finds the evidence does not reflect a diagnosis of a presumptive disease that results from exposure to Agent Orange. See 38 C.F.R. § 3.309 (e). Therefore, service connection for AML may not be granted on a presumptive basis. Nevertheless, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the cause of the Veteran’s death. The Veteran’s death certificate showed a death date of March 17, 1984, and listed the immediate cause of death as hemorrhage from respiratory and gastrointestinal tract due to, or as a consequence of, thrombocytopenia and AML. At the time of the Veteran’s death, he was not service-connected for any disability. There is no evidence of record showing that the Veteran’s AML manifested during service or within one year of separation from service. The Veteran’s June 1971 separation examination did not show a diagnosis of AML. Post-service medical records showed that the Veteran was diagnosed with AML in March 1983, over ten years following his separation from service. Accordingly, the Board finds that the cause of the Veteran’s death, AML, did not manifest in service. In addition, the weight of the evidence of record does not otherwise link the Veteran’s cause of death to service. The appellant asserted that the Veteran developed AML as a result of exposure to Agent Orange during his Vietnam service. In support of the opinion, the appellant submitted a July 2014 medical opinion which addressed whether another Veteran’s AML was caused by Agent Orange. The doctor summarized the Veteran’s medical history and concluded that Agent Orange is contaminated with dioxin, which is composed of benzine rings and is a benzene analog. The doctor stated that medical, environmental, and toxicology literature extensively documented the effect of benzene as a causative agent for AML. Therefore, the doctor concluded that the other Veteran’s diagnosis of AML may certainly have been caused from a prior exposure to Agent Orange. The November 2015 VA examiner provided medical opinions in September 2017 and April 2018. Following a review of the medical records and the July 2014 private medical opinion, the VA examiner opined that it was less likely than not that the Veteran’s AML was caused by or related to service, to include the Veteran’s exposure to Agent Orange during service regardless of the fact that AML is not listed as a presumptive condition. The VA examiner addressed the July 2014 private medical opinion and cited medical literature to show that the benzene rings in Agent Orange are resistant to metabolism. Specifically, benzene did not emerge from dioxin, whose three-ring structure is extremely stable and resistant to metabolism. The VA examiner defined metabolism as a whole range of biochemical processes that occur within a living organism. Metabolism consists of anabolism (the buildup of substances) and catabolism (the breakdown of substances). Benzene is the smallest and most stable aromatic hydrocarbon and in order for it to be toxic, benzene must be metabolized to reactive intermediates. It was noted that benzene was a risk factor for the development of AML, however, since benzene does not emerge from dioxin due to the three ring structure of dioxin being extremely stable and resistant to metabolism, it was less likely than not that the Veteran’s AML was related to exposure to Agent Orange during service. Based on the foregoing, the Board finds that the competent, credible, and probative evidence establishes that the Veteran’s cause of death was not etiologically related to the Veteran’s active service, to include as due to his presumed Agent Orange exposure. The overwhelming medical evidence supports the conclusion that the Veteran’s AML was not related to service. The Board affords limited probative value to the July 2014 medical opinions. In particular, the opinion was not specific to the Veteran, as it was provided in support of another Veteran’s claim and was based on a review of that Veteran’s medical history. Moreover, the private medical opinion stated that benzene may certainly cause AML. Use of the word “may” renders the opinion speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that medical opinions expressed in terms of “may” also imply “may or may not” and are too speculative to establish medical nexus). Conversely, the Board finds that the September 2017 and April 2018 VA medical opinions are highly probative. The VA examiner considered the relevant evidence and medical literature. The VA examiner also provided a thorough discussion and adequate rationale in support of the opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a medical opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claim file alone). The Board has also considered the appellant’s assertions that the Veteran’s cause of death is related to service, however, as a lay person, she is not competent to provide etiology opinions regarding this issue, as it is a complex medical determination based upon internal medical processes and is not capable of lay observation. The appellant has not contended otherwise, and the evidence does not show, that she has the medical expertise to provide such opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Based on the foregoing, the Board finds that a preponderance of the evidence is against the appellant’s claim for service connection for the cause of the Veteran’s death. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board does not wish to convey any lack of sympathy for the appellant in this matter, nor for the unfortunate circumstances which resulted in the Veteran’s death. Moreover, the Board does not doubt the sincerity of the appellant’s contentions. That being said, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel