Citation Nr: A21020479 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 190930-35159 DATE: December 23, 2021 REMANDED The issue of entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970 and from March 1980 to June 1998. The Veteran's active duty service included service in the Republic of Vietnam. The Veteran died in November 2018 and the Appellant is the Veteran's surviving spouse. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for claimants dissatisfied with the Department of Veterans Affairs' (VA) decisions on their claims to seek review. On June 6, 2019, VA received a completed VA Form 21-534EZ from the Appellant seeking service connection for the cause of the Veteran's death. On August 6, 2019, a VA Regional Office (RO) issued a rating decision denying the Appellant's claim. Notification of this rating decision was issued via letter dated August 20, 2019. The Appellant disagreed with this rating decision and, accordingly, on September 30, 2019 she filed a VA Form 10182, Notice of Disagreement (NOD), with the Board of Veterans' Appeals (Board). On her NOD, the Appellant selected the Direct Review option. Based upon her selection of this option, the Board may consider the evidence of record up to the date of the August 6, 2019 rating decision. See 38 C.F.R. § 20.301. Service Connection for the Cause of the Veteran's Death Service connection for cause of death may be awarded to a veteran's surviving spouse for death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. In the instant case, the Board first notes that the Veteran was service-connected for the following disabilities during his lifetime: (1) lumbar spine intervertebral disc syndrome; (2) right shoulder degenerative arthritis with clavicle deformity; (3) hiatal hernia with gastroesophageal reflux disease; (4) acquired flatfoot; and (5) bilateral hand, feet, and scalp eczema/folliculitis. The Veteran's death certificate indicates that his immediate cause of death was neutropenic fever. Additionally, the certificate bacterial PNA as a condition leading to death. Lastly, the certificate specified acute myelogenous leukemia (AML) as the underlying cause of death. In December 2018, the Appellant contended that the Veteran's AML was caused by his exposure to herbicide agents, including Agent Orange, in Vietnam. See December 2018 VA 21-566EZ. The Appellant's representative reiterated this theory of entitlement in a December 2021 brief. The Veteran was not service-connected for AML during his lifetime. But, the Appellant's claim may still be granted if the Veteran could have been service-connected for this disability prior to his death in November 2018. 38 C.F.R. § 3.307(6)(iii) mandates that VA presume that any veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 was exposed to herbicide agents, including Agent Orange. Here, a Department of Defense Form 214 (DD214) indicates that the Veteran served in Vietnam from August 1968 to August 1969. Accordingly, the Board presumes that the Veteran was exposed to herbicide agents, including Agent Orange, during his active duty service. 38 C.F.R. § 3.309(e) recognizes that certain disabilities have been associated with in-service exposure to herbicide agents and are entitled to service connection presumptively. AML is not explicitly included within the presumptive list provided by 38 C.F.R. § 3.309(e). Nevertheless, service connection could still be warranted on a direct basis for AML if adequate, competent evidence links AML to the Veteran's in-service herbicide agent exposure. See 38 C.F.R. § 3.303; see also Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). In reviewing the evidence of record, the Board notes that the Appellant was not provided a VA medical opinion to address the merits of her claim prior to the issuance of the rating decision in August 2019. As the record demonstrates that (1) the Veteran had a diagnosis of AML prior to his death, and (2) the Veteran was exposed to herbicide agents in Vietnam during active duty service, VA committed a duty to assist error in adjudicating the Appellant's claim without first providing a VA medical opinion. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, remand is warranted. The matter is REMANDED for the following action: Send the claims file to an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of the Veteran's AML. After thoroughly reviewing the claims file, the clinician should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's AML was caused by or related to his exposure to herbicide agents, including Agent Orange, during active duty service in Vietnam. In offering any opinion, the clinician should consider medical and lay evidence date both prior to and since the filing of the claim. For the opinion requested, a complete rationale must be provided. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.