Citation Nr: 21072683 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-51 973 DATE: December 6, 2021 ORDER Service connection for multiple myeloma for the purposes of accrued benefits is granted. FINDING OF FACT Resolving all reasonable doubt in the appellant's favor, the Veteran had a diagnosis of multiple myeloma which developed due to in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for multiple myeloma are met. 38 U.S.C. §§ 1110, 1116, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1967 to June 1969. He died in August 2015. The appellant is his surviving spouse. She has been substituted for the Veteran for the purpose of processing his pending service connection claim for multiple myeloma to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Service Connection The appellant seeks to continue the Veteran's claim for entitlement to service connection for multiple myeloma due to herbicide exposure. Accrued benefits are defined as "periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid...." 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). The entitlement of an accrued benefits claimant is derived from the deceased individual's entitlement, and the accrued benefits claimant cannot be entitled to a greater benefit than the deceased individual would have received had he or she lived. The claimant takes the deceased individual's claim as it stands at the time of the individual's death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). The Veteran filed a claim for service connection for multiple myeloma in July 2011. The claim was denied and the Veteran initiated the appeal process prior to his death. As noted above, the appellant has been properly substituted and seeks to establish that the Veteran was entitled to service connection for multiple myeloma due to herbicide exposure. If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain medical conditions, including multiple myeloma. 38 C.F.R. § 3.309 (e). To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, the veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he has a current diagnosis of a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). For multiple myeloma, the time period is any time after service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. At the outset, the Board notes that the Veteran's exposure to herbicide agents has been conceded; thus, the only question before it is whether or not the Veteran had a diagnosis of multiple myeloma prior to his death from service-connected lung cancer, in August 2015. Evidence in favor of the claim is a July 2011 private treatment record, which shows a medical diagnosis of multiple myeloma. Evidence both for and against the claim is an August 2011 VA examination report in which it was noted that the Veteran was being treated for monoclonal gammopathy of uncertain significance (MGUS). The author of the examination report also noted a diagnosis of early smoldering multiple myeloma at that time. In October 2018, a VA opinion was obtained on the question of a formal diagnosis. The authoring VA physician concluded at that time that the Veteran did not have a diagnosis of multiple myeloma prior to his death. He explained that it was less likely than not that there had been such a diagnosis because the Veteran was experiencing MGUS at the time of the 2011 diagnosis, not multiple myeloma, and a 2015 follow-up for the condition showed only the presence of MGUS, which was not a malignant condition. However, the physician went on to note that a "small fraction" of patients with MGUS will eventually develop multiple myeloma. Accordingly, the evidence is arguably in equipoise on the question of whether or not the Veteran had a diagnosis of multiple myeloma prior to his death. As required by law, the Board will resolve reasonable doubt in the appellant's favor and conclude, based on indications of multiple myeloma contained in the record, that the Veteran was, at some point during the relevant time period, diagnosed with multiple myeloma. See 38 C.F.R. § 3.102 (providing that when a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant); Gilbert, supra. As such, the Board finds that the Veteran's multiple myeloma was caused by his in-service exposure to herbicide agents and the nexus requirement has been met. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.