Citation Nr: 19129352 Decision Date: 04/15/19 Archive Date: 04/15/19 DOCKET NO. 17-63 518 DATE: April 15, 2019 ORDER Entitlement to service connection for acute myeloid leukemia (AML), to include as due to exposure to herbicide agents, is granted. FINDING OF FACT The competent and credible evidence of record is at least in equipoise that the Veteran’s AML is causally or etiologically related to his exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for AML have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1966 to October 1968. The Veteran died in October 2017; the appellant is his surviving spouse, and has been properly substituted in this case. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the appellant filed a claim for entitlement to service connection for the cause of the Veteran’s death. The underlying cause of the Veteran’s death was AML with no contributory causes. See November 2017 Death Certificate. In a January 2018 rating decision, the RO granted the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death. See January 2018 Rating Decision – Narrative. Service Connection Generally, to establish service connection a veteran 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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2, 4-D; 2, 4, 5-T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for AML, to include as due to exposure to herbicide agents. After a review of the record, the Board finds that the Veteran meets the standards for service connection for AML as the preponderance of the evidence supports a finding that as a result of his exposure to herbicide agents the Veteran had AML. At the outset, the Board notes that the Veteran had a current diagnosis of AML. See August 2014 CAPRI. As such, the first element of service connection is met. Turning to the medical evidence, the Board finds that there is no AML-related in-service event, injury or disease. A review of the service treatment records shows that the Veteran was noted to have normal findings except for mumps in the October 1968 separation examination. See October 2007 STR – Medical. Further, the Veteran only alleged that his AML manifested due to exposure to herbicide agents and not due to any other events or injuries in service. As such, the Board finds that there is no in-service incurrence or aggravation of a disease or injury. As for presumptive service connection based on exposure to herbicide agents, the Board concedes that the Veteran was exposed to herbicide agents as he was stationed in Vietnam. See July 2017 Certificate of Release or Discharge from Active Duty. However, the Board notes that AML is not a recognized disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). As such, the Board finds that the appellant cannot avail herself under the theory of presumptive service connection based on exposure to herbicide agents. However, as the Veteran was exposed to herbicide agents the second element of direct service connection, and in-service injury, has been met. Regarding the third element (nexus), the Veteran submitted a medical opinion from Dr. K. See April 2017 Medical Opinion. Dr. K. stated that based on multiple sources and experts, Agent Orange is contaminated with benzene and/or that benzene rings are part of the chemical structure of Agent Orange. As exposure to benzene is an established factor associated with an increased risk of myelodysplastic syndrome and AML, Dr. K. determined that the Veteran was exposed to benzene either as a contaminant of Agent Orange, or as part of the chemical structure of Agent Orange, and as such it is as likely as not that the Veteran’s AML is caused by prior exposure to benzene and thus by extrapolation to Agent Orange. The Board finds Dr. K.’s opinion probative and persuasive. The Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s AML is causally related to his conceded exposure to herbicide agents. As such, after resolving reasonable doubt in the Veteran’s favor, the Board finds the final element of service connection has been met. (Continued on the next page)   In conclusion, the Board finds that the Veteran had a current diagnosis of AML, and the medical evidence is at least in equipoise that the Veteran’s AML is causally related to his exposure to herbicide agents. The Board thus finds that service connection for AML is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel