Citation Nr: 21067893 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-04 450 DATE: November 5, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in July 2010; according to his death certificate, the immediate causes of death was acute leukemia and his underlying cause of death myelodysplastic syndrome (MDS). 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss. 3. The preponderance of the evidence shows that the conditions causing or contributing substantially or materially to the Veteran's death did not initially manifest during his time in service or within one year of his discharge; the causes of death also have not been otherwise shown to be related to or the result of his military service, and his service-connected disabilities did not cause or aggravate any of the causes of his death. CONCLUSION OF LAW The criteria are not met for entitlement to Dependency and Indemnity Compensation (DIC) benefits, including for service connection for the Veteran's cause of death. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 1318, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.22, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from July 1966 to July 1970, including in the Republic of Vietnam. He died in July 2010. The appellant is his surviving spouse, so widow. This appeal to the Board of Veterans' Appeals (Board) is from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant-widow testified in support of this claim during a December 2020 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In April 2021, the Board remanded this claim back to the RO, so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration, including, if feasible, for a toxicology opinion concerning whether there are active benzenes in Agent Orange (i.e., whether the benzyl-like group in Agent Orange has any real similarity to the benzyl group in benzene; are the chemical compositions or molecular formulas the same?), and then also for a medical nexus opinion concerning whether a service-connected disability caused or contributed substantially or materially to the Veteran's death. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for the cause of the Veteran's death is denied. The Veteran was diagnosed with MDS in November 2008, and MDS was the underlying cause of his death. The appellant-widow contends that she is entitled to DIC benefits, especially to service connection for the cause of his death, on the premise his MDS was caused by his exposure to an herbicide agent in Vietnam, including benzene used in deploying the herbicide agent. DIC is payable when a Veteran dies from a service-connected disability or a disability that is entitled to service connection. See 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a nexus between the disease or injury in service and death. Service connection is granted for disability (or, here, death) resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for certain chronic diseases, including malignant (cancerous) tumors, will be presumed if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following the Veteran's separation from active military service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § § 3.307, 3.309(a). Service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. See 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide applies to a Veteran who had active military, naval, or air service for at least 90 days during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Notwithstanding the foregoing presumptive provisions, the Federal Circuit Court has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Thus, a presumption is not the sole method for showing causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); and McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit-of-the-doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Turning now to the facts and circumstances of this case at hand, the appellant-widow contends that the Veteran's death was due to herbicide exposure (to the dioxin in Agent Orange) during his service, while in Vietnam. She believes the exposure to that toxin led to his terminal MDS. Because the Veteran had confirmed active service in the Republic of Vietnam during the requisite statutory time period (Vietnam Era), it is presumed that he was exposed to herbicides while there. But, although it presumed that he was exposed to herbicides while serving in Vietnam, his diagnoses of leukemia and MDS are not diseases presumptively associated with that exposure. Multiple myeloma and B-cell leukemias are presumptive diseases according to 38 C.F.R. § 3.309(e). However, a VA examiner in March 2011 pointed out that the Veteran's pathology report in his VA treatment records indicates "the bone marrow is characteristic for acute myelogenous leukemia", which is a separate leukemia than B-cell leukemia. The VA examiner clarified the Veteran's acute leukemia is not connected to B-cell leukemia. Consequently, as treatment notes confirm he did not have a B-cell leukemia diagnosis, presumptive service connection is not warranted. Nevertheless, as already explained, there still is the possibility of showing entitlement to direct service connection, that is, by directly tracing a terminal condition so including the MDS, to the Veteran's presumed exposure to the dioxin in Agent Orange while stationed in Vietnam. Indeed, this remaining other possibility is the very reason the Board remanded this cause-of-death claim in April 2021 to obtain more medical comment concerning this determinative issue. It is not in dispute that, at the time of his death, the Veteran had acute leukemia and MDS; these conditions are clearly listed on the death certificate as causing or contributing to his death. What therefore must be resolved, instead, is whether these fatal illnesses were etiologically related to his military service, including especially to his presumed exposure to herbicides in Vietnam. Based on the additional medical comment obtained on remand concerning this posited correlation, the Board finds that the preponderance of the evidence is against the appellant's claim that the acute leukemia and MDS were disabilities owing to the Veteran's military service (i.e., service-connected disabilities). The Veteran's service treatment records (STRs) are unremarkable for signs, symptoms, findings, treatment, or diagnosis of leukemia or MDS. To the contrary, evidence in the file shows that he was first diagnosed with leukemia or MDS in November 2008, so not until over 38 years after his separation from service. While not dispositive, that long a lapse of time between his separation from active service and the earliest documentation of this now claimed disability is a factor tending to weigh against the appellant-widow's claim for service connection for cause of death. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). During a January 1991 VA examination, the Veteran indicated that his civilian occupations included oil roustabout, auto painter, and dry cleaner manager. To try and substantiate her claim, the appellant-widow submitted several medical literatures purporting to show an etiological link between MDS and exposure to Agent Orange. In further support of her claim, she submitted an opinion from a private physician. In his November 2020 report, this private physician stated that it is more likely than not that the cause of the Veteran's MDS was his "exposure to benzene present in Agent Orange herbicide or in organic solvents used to disperse Agent Orange" and that it is unlikely that anything else caused his MDS. The articles cited by the private physician, and articles associated with the claims file, overwhelmingly indicate a risk factor for MDS is long-term exposure to chemicals such as in solvents, paint, and gasoline. Another risk factor, however, is chronic cigarette smoking. As was discussed in the Board's April 2021 consequent remand of this claim, there are notable failings in that private medical opinion that tend to undermine its probative value. The private physician concluded that the Veteran's post-service "exposure to benzene was not any greater than that of the general population," however, he did not consider or chose to minimize evidence showing the Veteran's post-service occupational history as a roustabout, auto painter, and dry cleaner manager and his exposure to chemicals, including paint and oil. The articles submitted reflect that workers are exposed to benzene in oil refining, petrochemical transport, or vehicle repair. These articles also explain that benzene is present in crude oil and is a byproduct of refining. This is potentially significant since the Veteran was a roustabout for an oil company from April 1981 to May 1982. As he was a roustabout, it stands to reason that he was around crude oil or byproducts for a significant amount of time during that approximate 12-month period. The articles also note that benzene is in paint. The Veteran was an auto painter from May 1982 to October 1986. Thus, it reasonably can be found that he was in close contact with paints on a very frequent and extensive basis for four years. The articles further indicate that occupational exposure to other chemicals and/or solvents may be related to MDS. The Veteran worked as a manager at a drycleaner from October 1986 to at least December 1990. When seen in 2008 for MDS, he noted he had worked painting automobiles and had exposure to fumes. As importantly, however, in August 2021 the VA examiner charged with reviewing this case on remand concluded that it is at least as likely as not the Veteran's post- service exposure to benzene, which was more constant than his in-service herbicide exposure, resulted in leukemia secondary to MDS. This VA examiner reasoned that the Veteran's service and exposure to an herbicide agent in Vietnam was in approximately 1969 and 1970 and he did not show symptoms of MDS during and within one year after his separation from service. This VA examiner noted that it is known that petroleum-based dispersants are used in spraying agent orange and these dispersants are recognized to contain benzene, which is acknowledged to be a causal agent of MDS. However, this VA examiner pointed out that, according to medical literature, this volatile chemical would not remain present in sprayed herbicides. This VA examiner surmised this would explain that the Veteran did not have continuous exposure to benzene during his tour in Vietnam from 1969 to 1970. Most significantly, this VA examiner noted that the Veteran did have continuous exposure to benzene after service due to his occupations as an oil roustabout, manager for dry cleaner, automobile painting, and history to cigarette smoking (approximately from 1977 to 1983). This VA examiner goes on to also conclude that the Veteran's service-connected disabilities of PTSD, tinnitus, and bilateral hearing loss did not cause or contribute substantially or materially to his death, also that his service-connected disabilities did not render him materially less capable of resisting the effects of leukemia due to MDS. In short, this VA examiner completed disassociated the Veteran's death from his military service, and the Board finds this opinion highly probative since supported by the evidence of record and containing the required explanation (rationale). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board has considered the attorney's arguments that VA has granted claims in other cases where it was shown that Agent Orange contains certain benzene or benzene products, and that benzene products is what caused the MDS to occur. See December 2020 Board Hearing Transcript at page 3. He further argued that the private physician's expert opinion ties all those opinions along with a whole slew of scientific studies that are out there showing that MDS is connected to Agent Orange. Id. But to the extent the attorney argues there are prior Board decisions where a Veteran was awarded service connection for MDS due to exposure the herbicide agents including benzene, those previous Board decisions are not binding on the Board unless the previous decision specifically addressed this particular Veteran's unique circumstances. See 38 C.F.R. §§ 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). Essentially, the Board's prior decision are not dispositive in this case since they concern different Veterans' experiences with exposure to benzene and do not reveal anything about this Veteran's exposure including significant post-service exposure due to his various occupations. Furthermore, as highlighted when previously remanding this claim, the private physician's supporting opinion did not address the Veteran's post-service exposure to benzene and whether that had any impact on his eventual leukemia and MDS terminal diagnosis. Additionally, the Board acknowledges the appellant's lay statements but finds they are outweighed by the objective medical evidence. The conditions at issue in this appeal are medically complex, not merely simple, so, ultimately, determining whether there is a correlation between the Veteran's unfortunate death and a service-connected disability or exposure to an herbicide agent in Vietnam resulting in a terminal disability requires supporting medical, not just lay, evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). And the Board has explained why the August 2021 VA examiner's unfavorable medical opinion is more probative than the private opinion previously submitted in November 2020 in support of the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Since, for the reasons and bases discussed, the preponderance of the evidence is against the appellant-widow's claim for service connection for the cause of the Veteran's death, there is no reasonable doubt to be resolved in her favor. Consequently, her claim of entitlement to DIC benefits based on service connection for the Veteran's cause of death is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.