Citation Nr: 20007098 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 10-12 960 DATE: January 28, 2020 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to May 1971. The Veteran died in July 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision issued by a Department of Veterans Appeals (VA) Regional Office (RO). A September 2017 Board decision denied service connection for cause of death. The appellant appealed the Board’s decision to the United States Court for Veterans Claims (CAVC). In a July 2019 Memorandum Decision, CAVC vacated and remanded the Board’s decision. The CAVC noted that, recently, Congress enacted new statutory requirements for the adjudications of certain claims based on Veterans’ herbicide agent exposure via the Blue Water Act, which notably contains no references to units designated by the Department of Defense (DOD) and simply refers to veterans who served in or near the DMZ. The claim was remanded to allow the Board to consider in the first instance any effects that these statutory changes might have on the appellant’s claim. 07/31/2019, CAVC Decision. Entitlement to service connection for cause of death is remanded. The appellant contends that the Veteran’s cause of death is related to his active service, including in-service exposure to herbicide agents while serving near the DMZ. At the time of the Veteran’s death, he did not have any service-connected disabilities. The Veteran’s death certificate notes the immediate cause of death as acute myelogenous leukemia. 07/28/2008, Death Certificate. A Defense Personnel Records Information Retrieval System (DPRIS) response indicates that the Veteran’s unit was not documented to have performed specific duties along the DMZ, and the records do not document the use, storage, spraying, or transportation of herbicides. 05/24/2017, DPRIS Response; 05/30/2017, Administrative Decision. Likewise, the Veteran does not contend that he performed duties directly along the DMZ. However, prior to his death, the Veteran asserted that he was exposed to herbicide agents while stationed within three miles from the DMZ for a period of approximately six months. 06/19/2006, VA 21-526. Additionally, the DPRIS response merely reflects that documents cannot be found to indicate whether the Veteran was exposed to herbicide agents, but does not definitely exclude the possibility. There is no evidence in the file to doubt the Veteran’s statements and so the Board finds the Veteran’s account of exposure to herbicide agents to be credible. Thus, he has had factual exposure to herbicide agents during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, the in-service and nexus elements will be presumed for certain diseases, including chronic B-cell leukemia. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, acute myelogenous leukemia is not a chronic B-cell leukemia and is therefore not subject to presumptive service connection. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The private treatment records suggest that the Veteran’s leukemia may have been related to his in-service exposure to herbicide agents, but do not explicitly include a medical opinion. 03/12/2010, Medical Treatment Record – Non-Government Facility. To this end, the Board finds that a VA medical opinion is necessary to determine nature and etiology of the Veteran’s cause of death, to include whether the Veteran’s acute myelogenous leukemia was related to exposure to herbicide agents. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the appellant to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Determine if the Veteran "served in or near" the DMZ per newly enacted 38 U.S.C. § 1116B (Supp. 2019) (Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969 (2019). 3. After completing directive # 1, obtain a medical opinion from an appropriate clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to address the following. (a.) Whether the Veteran’s acute myelogenous leukemia was at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include exposure to herbicide agents. (b.) If the Veteran’s acute myelogenous leukemia was at least as likely as not related to his active service, whether it is at least as likely as not (50 percent or greater probability) that this condition(s) was the immediate or underlying cause of his death, contributed substantially or materially to cause his death, combined to cause death, and/or aided or lent assistance to the production of his death. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. (CONTINUED ON THE NEXT PAGE)   If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.