Citation Nr: 21063263 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-15 994 DATE: October 13, 2021 ORDER The request to reopen the claim of service connection for the cause of the Veteran's death is granted. On de novo review, service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. A February 2007 rating decision denied entitlement to service connection for the cause of the Veteran's death on the basis that there was no evidence to show that his death was related to his military service. Although his spouse initiated an appeal of that decision, she did not perfect that appeal following the issuance of an October 2008 statement of the case (SOC). Therefore, that decision became final. 2. Evidence received since the February 2007 rating decision includes private medical opinions linking the Veteran's myelodysplasia to his exposure to herbicide agents during service. This evidence relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for the cause of the Veteran's death. 3. The Veteran's active service included service in the Republic of Vietnam during the Vietnam War, and he is presumed to have been exposed to herbicide agents during service. 4. The Veteran died in August 2006; the cause of death was septic shock, neutropenia, and myelodysplasia. Pancytopenia was also listed as a significant condition contributing to his death. 5. Resolving any reasonable doubt in his favor, the Veteran's myelodysplasia was due to his exposure to herbicide agents during military service. CONCLUSIONS OF LAW 1. The February 2007 rating decision is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. §§ 19.52, 20.1103 (2021). 2. The evidence received since the February 2007 rating decision, which denied service connection for the cause of the Veteran's death, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021). 3. Service connection for the cause of the Veteran's death is granted. 38 U.S.C. §§ 1110, 1116, 1310, 5107 (2018); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of the Veteran who served on active duty from January 1971 to January 1974, with service in Vietnam. The Veteran died in August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. Following the last adjudication of this claim (in March 2018), the appellant submitted additional evidence, which is presumed to include a waiver of Agency of Original Jurisdiction (AOJ) consideration because the appeal was perfected after February 2, 2013, and the appellant did not request initial review by the AOJ. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1)). For the reasons outlined above, the request to reopen the claim of service connection for the cause of the Veteran's death is granted. The Board will proceed with adjudication of the issue on the merits in the decision herein. Service connection for the cause of the Veteran's death is granted. To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in, or aggravated by, active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A certificate of death indicates that the Veteran died in August 2006. Septic shock, neutropenia, and myelodysplasia are listed on his death certificate as significant conditions contributing to his death. At the time of his death, service connection had not been granted for any disability. The Veteran had service in the Republic of Vietnam; exposure to herbicide agents is therefore presumed. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Septic shock, neutropenia, and myelodysplasia are not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309. However, service connection may be awarded on a direct basis, if the evidence establishes that any of those disabilities are related to exposure to herbicide agents. See generally Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In an undated opinion (received by VA in March 2018), Dr. R.S. noted that the Veteran began experiencing health issues in 1997 and was diagnosed with abnormal clonal T cell population in 1998, which predisposed him to fungal infections. In 2002, he was diagnosed with macrocytic anemia and myelodysplastic syndrome. He had a very high risk of progression to leukemia but chose not to pursue a treatment option that would be curative. She noted that exposure to herbicide agents "is known to cause immune abnormalities and blood dyscrasias (sic)." She continued that his chromosomal abnormalities and myelodysplasia were a "direct result of this service related exposure and a precursor to [the] development of leukemia." The opinion is adequate for appellate review as it is based on an accurate factual premise and is supported by adequate rationale. There is no other medical evidence of record that refutes or contradicts this opinion. Accordingly, because the evidence demonstrates that the Veteran's myelodysplasia was caused by his exposure to herbicide agents during service, and because his myelodysplasia contributed substantially to his death, the appellant's claim for service connection for the cause of the Veteran's death is granted. 38 C.F.R. §§ 3.307, 3.309, 3.312. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.