Citation Nr: A21019704 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 210818-179002 DATE: December 10, 2021 ORDER Service connection for the cause of the Veteran's death is granted. The appeal of the issue of whether new and relevant evidence has been received to readjudicate a previously denied claim of entitlement to service connection for acute myeloid leukemia, for accrued purposes, is dismissed without prejudice. FINDINGS OF FACT 1. The Veteran died in January 2021; the immediate cause of death was acute hypoxic respiratory failure due to (or as a consequence of) underlying causes of pulmonary embolism, deep vein thrombosis, and acute myeloid leukemia. 2. The Veteran is presumed to have been exposed to herbicide agents. 3. Acute myeloid leukemia is not contemplated with all chronic B-cell leukemias listed among the diseases presumptively associated with exposure to certain herbicide agents under applicable regulations. 4. The Veteran's fatal acute myeloid leukemia is as likely as not attributable to his in-service herbicide exposure. 5. The Agency of Original Jurisdiction (AOJ) has not made a substitution determination for the appellant. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116(a)(2), 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal of the claim for readjudication of service connection for acute myeloid leukemia at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1967 to April 1970. The Veteran died in January 2021. The appellant filed this case as the surviving spouse. The rating decision on appeal for entitlement to service connection for the cause of the Veteran's death was issued in July 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal in July 2021, as well as any evidence submitted by the appellant or her representative with the NOD on August 18, 2021 or within 90 days of receipt of the NOD on November 16, 2021. 38 C.F.R. § 20.303. Additionally, the rating decisions on appeal for whether new and relevant evidence has been received to readjudicate a previously denied claim of entitlement to service connection for acute myeloid leukemia were issued in June 2020 and August 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the AMA, applies. In the VA Form 10182, Decision Review Request: Board Appeal (NOD), the appellant elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal in August 2020, as well as any evidence submitted by the appellant or her representative with the NOD on August 18, 2021 or within 90 days of receipt of the NOD on November 16, 2021. 38 C.F.R. § 20.303. Service connection for the cause of the Veteran's death is granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or a 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, singly or jointly with some other condition, the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). In order for the service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). The Veteran's death certificate shows that he died in January 2021. The immediate cause of death was acute hypoxic respiratory failure due to (or as a consequence of) underlying causes of pulmonary embolism, deep vein thrombosis, and acute myeloid leukemia. At the time of his death, service connection was established for diabetes mellitus, type II, peripheral neuropathy of the bilateral lower extremities secondary to diabetes mellitus, type II, tinnitus, and bilateral hearing loss. The AOJ made a favorable finding in April 2010 and August 2020 rating decisions of sufficient service to meet the minimum requirements for presumptive service connection, the Veteran's DD Form 214 shows service in Vietnam, and conceded his exposure to herbicide agents. The AOJ also made a favorable finding in the August 2020 rating decision of a current disability, specifically noting the Veteran's diagnosis of acute myeloid leukemia in a December 2019 VA treatment record. Favorable findings made by the AOJ are binding on all AOJ adjudicators as well as on the Board. 38 U.S.C. § 5104A; 38 C.F.R. § 20.801. The Board acknowledges that acute myeloid leukemia is not contemplated with all chronic B-cell leukemias listed among the diseases presumptively associated with exposure to certain herbicide agents under applicable regulations. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). Nevertheless, review of the evidentiary record includes the appellant's submission of a June 2021 private medical opinion. After a review of the claims file, Dr. C. K. explained why the Veteran's acute myeloid leukemia was at least as likely as not caused by the conceded exposure to herbicide agents. The Board finds there is no probative contrary medical opinion of record. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran's death is warranted. See 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312(b). The appeal as to whether new and relevant evidence has been received to readjudicate a previously denied claim of entitlement to service connection for acute myeloid leukemia is dismissed without prejudice. Unfortunately, the Veteran died in January 2021, during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Therefore, this appeal must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. In April 2021, VA received the appellant's VA Form 21-0847 (Request for Substitution of Claimant Upon Death of Claimant). In a September 2021 notice letter, the AOJ repeatedly noted the appellant "may be considered an eligible substitute claimant;" however, the AOJ has not made an initial determination regarding whether the appellant is a valid substitute. In September 2021, the appellant's attorney requested that the AOJ make a substitution determination. All determinations regarding a request to substitute must be made in the first instance by the AOJ, subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010 (b), (c)(1), (e) (2020). Because the AOJ has not made a substitution determination, the appeal is dismissed without prejudice. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.