Citation Nr: 20050174 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 17-46 730 DATE: July 28, 2020 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in February 1986; the cause of death listed on his death certificate was necrotizing pneumonia due to myeloid metaplasia/myelofibrosis. 2. The Veteran had service in the Republic of Vietnam from April 1972 to March 1973; the Veteran's exposure to an herbicide agent is presumed. 3. The evidence shows that necrotizing pneumonia due to myeloid metaplasia/myelofibrosis did not manifest in service or for many years thereafter and is otherwise unrelated to service, to include presumed exposure to an herbicide agent, including Agent Orange. 4. The evidence shows that the Veteran’s service connected arteriosclerotic cardiovascular heart disease or ankylosis of the right fourth and fifth fingers; high frequency hearing loss; paraesophageal hiatal hernia; and degenerative joint disease of the spine; right hand, and bilateral knees were not, singly or jointly with some other condition, the immediate or underlying causes of the Veteran's death, etiologically related thereto, contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1112, 1116, 1310 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from August 1945 to October 1948 and from August 1950 to January 1976, to include service during World War II and in the Republic of Vietnam and Korea. Unfortunately, the Veteran died in February 1986. The appellant is his surviving Spouse. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, proposing severance of service connection for cause of death. The appellant filed a timely notice of disagreement (NOD) in September 2016, and in June 2017, the RO issued rating decision severing service connection for cause of death, effective May 1, 2016. The RO then issued a statement of the case (SOC) in August 2017. The Board remanded the issue for additional development in February 2020. The Board finds that its February 2020 remand directives have been substantially complied with, and the matter is properly before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020, the appellant testified at a hearing before the undersigned Veteran’s Law Judge (VLJ). A transcript of that proceeding is associated with the record. I. Duty to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally 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). Cause of Death – Legal Criteria To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312 (c)(1). 1. Entitlement to service connection for the Veteran's cause of death The appellant is seeking service connection for the cause of the Veteran’s death. Specifically, she contends that the Veteran’s death from necrotizing pneumonia due to myeloid metaplasia/myelofibrosis was directly as a result of exposure to herbicides during active service. Specifically, she contends that one of the exposure chemicals associated with myelofibrosis is “Benzene,” which is part of the chemical composition of Agent Orange. See January 2020 Hearing Transcript.; November 2017 VA Form 646 - Statement of Representative (citing to “Merk Manual, ch. 130, sec. II” with regards to the chemical benzene). Alternatively, the appellant contends that the Veteran’s cause of death was due to his service-connected heart disability and that it aggravated the Veteran’s myeloid metaplasia. See January 2011 Statement in Support of Claim; January 2010 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309 (e), shall be presumed to have been exposed during such service 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). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, a disease listed at 38 C.F.R. § 3.309 (e) shall be service connected, even though there is no record of such disease during service. The Veteran's military personnel record demonstrates that the Veteran served in the Republic of Vietnam, as noted above. As such, the Veteran had "service in the Republic of Vietnam" and is eligible for the presumption of Agent Orange exposure. 38 C.F.R. § 3.307 (a)(6)(iii). However, necrotizing pneumonia or myeloid metaplasia/myelofibrosis is not listed in 38 C.F.R. § 3.309 (e), and thus, service connection cannot be granted under § 3.307(a). By way of history, the appellant’s claim for the Veteran’s cause of death was originally denied in a May 1993 rating decision. However, the RO granted the claim in a September 2012 rating decision based on presumptive service connection. However, a February 2016 rating decision, which is on appeal herein proposed severance of Dependency and Indemnity Compensation for the Veteran’s cause of death and service connection was severed based on clear and unmistakable error in a June 2017 rating decision because the Veteran’s cause of death was based on a non-presumptive Agent Orange disability. The appellant appealed to the Board in September 2017 after a Statement of the Case was issued in August 2017. The Board remanded the issue for a new VA opinion after VA medical opinions of record, conducted in September 2012 and January 2016 were found to be inadequate. A VA examination was conducted in April 2020. The examiner opined after a review of the evidence of record that it is less likely as not that the Veteran’s cause of death was incurred in or caused by his military service, to include conceded herbicide exposure. The examiner opined that myeloid metaplasia with myelofibrosis occurs with an estimated incidence of 1.5 per 100,000 per year and that it typically occurs mainly in middle aged and older adults. The Veteran’s age was noted as 55 when he was diagnosed with myeloid metaplasia with myelofibrosis. As far as the appellant’s contention that Agent Orange contained benzene as a part of its composition, the examiner opined that benzene is a basic building block of a vast number of compounds, including naturally occurring human hormones in both men and women. The examiner elaborated on how benzene forms a stable molecule with incorporated into Agent Orange as it is “locked” into the larger molecule and no longer retains its original free molecule biological properties. The examiner added that Agent Orange does not contain biologically free benzene molecules and even if it did, benzene has not been found to be a casual risk factor for the Veteran’s myeloid metaplasia with myelofibrosis. Furthermore, the examiner added that studies of Vietnam Veterans exposed to Agent Orange have also not been observed to develop myeloid metaplasia with myelofibrosis. The examiner further explains that certain acute leukemias can occur as a terminal event in a minority of patients with myeloid metaplasia with myelofibrosis. However, in the Veteran’s case this was not apparent from his medical history and review of his death summary reports that his diagnosis was still myeloid metaplasia with myelofibrosis and not acute leukemia and even if leukemia developed, it is not a B-cell leukemia which is causally linked to herbicide exposure. The Board acknowledges that a November 1985 private medical record provided by the appellant shows a “probable” diagnosis of acute leukemia upon which a September 2012 medical opinion that the Board previously found to be inadequate was based. See July 2011 private treatment record. Although, the examiner here does not specifically reference the “probable” diagnosis, he goes on to explain that even if a diagnosis of acute leukemia existed, it is not B-cell leukemia, which is causally linked to herbicide exposure. Thus, the Board observes that additional development to seek further clarification would be futile. Lastly, the examiner issued an opinion regarding the appellant’s contention that the Veteran’s cause of death was due to his service-connected heart disability because it aggravated the Veteran’s myeloid metaplasia. He opined that it is less likely than not the Veteran’s cause of death was at least likely as not caused by, or aggravated by his service-connected disabilities, including heart disease. He added that the Veteran underwent a cardiac imaging study three months prior to his death, which showed normal cardiac functioning. The examiner further noted that terminal hospital records contain no evidence that the Veteran’s arteriosclerotic heart disease cause, contributed, or aggravated his cause of death. The death summary did not reveal that this was an active condition. The Veteran was also service connected for ankylosis of the right fourth and fifth fingers; high frequency hearing loss; paraesophageal hiatal hernia; and degenerative joint disease of the spine; right hand, and bilateral knees, in addition to his heart condition. See June 1976 Notification Letter. The examiner opined that it is less likely than not that any of these conditions caused, contributed or aggravated his cause of death. Consistent with 38 C.F.R. § 5107 (b) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Board has carefully considered the appellant's lay statements and hearing testimony before the undersigned VLJ. The Board has considered the appellant's statements that the Veteran's death was related to his service. The Board does not doubt the sincerity in her belief and emphasizes with the appellant. However, as a layperson, the appellant is not competent to state the cause of the Veteran's death and that it is related to exposure to herbicides or that the myeloid metaplasia was aggravated by the service-connected heart condition. Rather, it is the province of trained health care professionals to assess and enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. The Board is cognizant of the ability of lay witnesses to discern specific symptoms that may be observable such a broken leg; however, questions regarding conditions caused due to herbicide exposure or aggravation by other medical conditions, may only be diagnosed following medical testing for which the lay witness in this case has not established sufficient medical expertise to conduct. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, for the above reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. Direct, secondary or presumptive service connection in this case is not warranted. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, Associate Counsel 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.