Citation Nr: A21019172 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 211026-193997 DATE: December 2, 2021 ORDER Service connection for acute myeloid leukemia is granted. Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era, and is presumed to have been exposed to an herbicide agent such as that found in Agent Orange. 2. The Veteran's acute myeloid leukemia has been medically linked to his in-service exposure to an herbicide agent. 3. The Veteran died in June 2020; the immediate cause of his death was acute myeloid leukemia. CONCLUSIONS OF LAW 1. The criteria for service connection for acute myeloid leukemia have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had an honorable career in the U.S. Air Force, serving on active duty from December 1952 to June 1971. He died in June 2020. The appellant is his surviving spouse. She has been substituted as the claimant with respect to the claim for service connection for acute myeloid leukemia, which was pending at the time of the Veteran's death. See 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2021 decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). Acute Myeloid Leukemia The Board finds that service connection for the Veteran's acute myeloid leukemia is established, for the reasons that follow. The Veteran served in the Republic of Vietnam from 1969 to 1970, and is presumed to have been exposed to an herbicide agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). Certain diseases associated with exposure to an herbicide agent shall be presumed to be service connected even if there is no evidence of the disease in service, provided there is no affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). The diseases that have been associated with exposure to certain herbicide agents for purposes of the presumption include, in relevant part, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia). 38 C.F.R. § 3.309(e). The Veteran's private treatment records show he was diagnosed with acute myeloid leukemia in 2018. Acute myeloid leukemia is not categorized as a B-cell leukemia, and therefore does not qualify for the presumption of service connection based on in-service herbicide exposure. See id. Although presumptive service connection for acute myeloid leukemia based on in-service herbicide exposure is not available, direct service connection may still be established with proof of causation. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); accord Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) ("Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection"); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that the availability of service connection on a presumptive basis does not preclude a claimant from substantiating the claim with proof of direct causation). The probative evidence supports direct service connection. Specifically, in an April 2020 letter, U. Borate, MD, a private physician specializing in hematology and myelodysplastic syndromes, found that "more likely than not" the Veteran's exposure to an herbicide agent in Vietnam was the "precipitating event" for the development of his acute myeloid leukemia. The physician explained that myelodysplastic and leukemia disorders, like many cancers, can emerge after a long incubation period from underlying mutation. The physician further stated that environmental exposures have been linked to myeloid or other marrow disorders. The physician noted that for Vietnam veterans, there are a series of cancers and other health problems that have been associated with exposure to Agent Orange or other herbicides, including chronic B-cell leukemia, non-Hodgkin's lymphoma, multiple myeloma, and Hodgkin's disease. The physician observed that all of these malignancies are bone marrow based, and are related to either stem cell mutations or mutations of committed lineage progenitors. The physician concluded that it was "quite possible" that the Veteran's in-service exposure contributed to the development of his leukemic disorder, "the background molecular mutations" present in his marrow. Similar to other "Agent Orange-associated malignancies," such exposure can induce mutations that can be latent for decades before presenting with actual disease, according to the physician. The April 2020 private medical opinion by Dr. Borate is probative, as it is the conclusion of a medical professional with relevant expertise, indeed a specialist in the field, and is supported by an explanation sufficient to make an informed decision. In essence, the physician explained that there can be a long latency period between the mutation of cells and the emergence of cancers related to those mutations. The physician further indicated that the cancers that have been associated with exposure to certain herbicide agents, which are "bone marrow-based," are sufficiently similar to the Veteran's acute myeloid leukemia that their link to mutations caused by that exposure supported a finding that the Veteran's leukemia, which was also marrow-based, may similarly be linked to that exposure, notwithstanding, and perhaps consistent with, the long latency period between that exposure and the manifestation of his leukemia. The Board notes that while Dr. Borate used the words "may" and "possible" in the discussion supporting the conclusion reached, it is readily apparent from the explanation provided, as well as the conclusion that the Veteran's exposure "more likely than not" caused his acute myeloid leukemia, that the opinion is not merely speculative or inconclusive. Cf. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (holding that a "generic statement about the possibility of a link" to service is "too general and inconclusive" to be probative (emphasis in original)). Rather, it is sufficient to raise a reasonable doubt on the issue of whether there is a nexus between his leukemia and his in-service herbicide exposure. See 38 C.F.R. § 3.102. There is no evidence in the record weighing against a link between the Veteran's acute myeloid leukemia and his in-service herbicide exposure. Accordingly, based on the April 2020 medical opinion, the Board finds that the evidence is at least in approximate balance on that issue, and therefore a nexus is established. See 38 U.S.C. § 5107; Lynch, 999 F.3d at 1395. Because a current disability, in-service herbicide exposure, and a link between that disability and the Veteran's herbicide exposure is established, the criteria for service connection for acute myeloid leukemia on a direct basis are satisfied. See Holton, 557 F.3d at 1366. Cause of Death For the following reasons, the Board finds that service connection for the cause of the Veteran's death is established. A. Law A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of death and thus entitlement to DIC benefits, the evidence must show that a service-connected disability was either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when the disability singly or jointly with some other condition was the immediate or underlying cause of death, or etiologically related to such cause. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause, but which contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(c)(1). Service connection for the cause of a veteran's death may be established by showing that a disability for which service connection has already been awarded was the principal or a contributory cause of death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Otherwise, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran's death. Id. B. Analysis Preliminarily, as the Veteran's surviving spouse, the appellant's basic eligibility for DIC benefits is established. The record shows that the Veteran died in June 2020. The death certificate lists the immediate cause of death as acute myeloid leukemia. Because service connection has been established for that disease, and as that disease was the principal cause of death, the criteria for service connection for the cause of the Veteran's death are satisfied. See 38 C.F.R. § 3.312. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.