Citation Nr: 21008215 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 12-32 982 DATE: February 12, 2021 ORDER Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran died in January 2008 of pneumonia. 2. At the time of death, the Veteran had no service-connected conditions. 3. The Veteran’s myelodysplastic syndrome (MDS) is etiologically related to exposure to herbicide agents (Agent Orange) during active service. 4. MDS contributed substantially or materially to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION In January 2017 and April 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2016 and September 2020, the appellant and witnesses testified at Board hearings. The transcript is of record. 1. Entitlement to service connection for cause of death The appellant contends the Veteran’s MDS is due to herbicide exposure during active service and resulted in his death from pneumonia. Alternatively, the appellant contended MDS due to contaminated water at Camp Lejeune. The Board notes that the military records do not reveal that the Veteran was ever stationed at Camp Lejeune while serving in the Marine Corps. At the September 2020 Board hearing, the appellant testified that she does not have any additional documents that reveal anything different than what is in the official records. Therefore, the evidence is insufficient to establish that the Veteran was stationed at Camp Lejeune. After a veteran’s death, VA compensates certain beneficiaries, including surviving spouses, when the cause of death is a service-connected disability or the cause of death, while not service-connected, is related to service. 38 C.F.R. § 1310 ; 38 C.F.R. §§ 3.5 (a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312. When a veteran has not been service connected for any disability, the claimant must first establish service connection for a disability shown to have caused or contributed to the veteran’s death. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007) (observing that "where service connection has not been previously established, the DIC claimant must first establish service connection for the cause of the veteran's death"). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If the veteran was exposed to an herbicide agent (to include AO) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Board notes that herbicide exposure is conceded as the Veteran had verified service in Vietnam; however, MDS is not a disease subject to presumptive service connection. Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, at the time of death the Veteran did not have any service-connected conditions. Therefore, the Board must first determine whether service connection for MDS is warranted and if service connection is established, the Board must then determine if MDS was either the principal cause of death or contributed substantially or materially to the Veteran’s death. The medical evidence establishes that the Veteran received a diagnosis of MDS in December 2007. The Veteran was admitted to the hospital for febrile neutropenia secondary to atypical pneumonia. The Veteran’s respiratory status worsened despite intensive medical therapy and he was pronounced dead on January [REDACTED], 2008. The National Naval Medical Center death note reported the primary cause of death as pneumonia, with an associated cause of MDS. The death certificate reported the immediate cause of death as pneumonia. Therefore, the evidence establishes a diagnosis of MDS and an in-service event of herbicide exposure. However, regarding the nexus to establish service connection and whether MDS caused or contributed to the Veteran’s death, there are several conflicting medical opinions of record. The November 2009 VA examiner opined that the Veteran’s distant history of respiratory problems in his younger years is not a significant contributory factor and his time in service did not substantially or materially contribute to the Veteran’s cause of death. The Board finds that this opinion lacks probative value, as it does not provide an accurate medical history with an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, no weight is given to this opinion. Another opinion was obtained in March 2012. The VA examiner opined that it is less likely than not that MDS incurred in or was caused by service. The examiner explained that MDS is not a presumptive disease subject to service connection due to agent orange exposure and is in a different category than those diseases as the terminal event is either cytopenias or the development of acute myeloid leukemia. The risk factors per published literature is prior treatment with alkylating chemotherapeutic agents or radiating therapy, which is also the findings of various Institute of Medicine (IOM) studies. The examiner concluded that despite personal opinions of physician and others, there is no evidence that agent orange is likely to increase the risk of development of MDS. As to the relationship between MDS and the pneumonia that caused the Veteran’s death, the March 2012 examiner also opined that that the Veteran had a predominately neutropenic expression of his MDS; thus, causing a low neutrophil count and placing him at greater risk for infection. The Veteran was admitted to the hospital for edema and dyspnea of uncertain etiology. Bronchoscopy specimens were negative for viral, bacterial, mycobacterial identification and cytology but the pathology report for the min-thoracotomy and lung biopsy could not be located. Based on the available evidence the examiner opined that the most likely but not sole cause of death was neutropenia and opportunistic infection. The neutropenia was the result of MDS; however, there were no cultured infectious organisms. The Board notes that the examiner reported the inability to locate the pathology findings; therefore, the medical opinion is inadequate as it is based on a factually incomplete premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). As both the November 2009 and March 2012 medical opinions are inadequate and carry no weight, they will not be further discussed. The Veteran’s son, Dr. Longshaw, a board-certified family physician, provided medical opinions via correspondence dated October 3, 2016 and September 3, 2018. He opined that the Veteran’s MDS is due to Agent Orange exposure and the complications of MDS resulted in the inability to fight infection leading to pneumonia, which resulted in death. Dr. Longshaw explained that the Veteran suffered from the long term effects of Agent Orange and ultimately developed a form of blood cancer, MDS, which caused his bone marrow to be unable to produce blood cells resulting in difficulty fighting infection, anemia and the need for blood transfusions. According to Dr. Longshaw, the exposure to Agent Orange changed the course of the Veteran’s health as he was stricken with conditions, such as thyroid issues and blood clots, that ultimately led to the MDS diagnosis. He noted that Agent Orange is known to lay dormant in the body for 20 to 30 years before causing many forms of cancer, and blood related cancers and disease have been directly linked to Agent Orange. Due to the inability to fight infections as a result of MDS causing decreased white blood cells, the Veteran’s treating physician concluded that MDS made recovery impossible. Thus, while the cause of death was listed as pneumonia, it was a result of the MDS and its many complications. In support of his opinion, Dr. Longshaw cited a prior Board decision granting service connection for MDS secondary to herbicide exposure. In July 2017 an opinion was obtained from a VA examiner specializing in hematology and oncology. The examiner opined that it is less likely that MDS incurred in service or is caused by the August 1962 diagnosis of acute viremia or exposure to Agent Orange as the scientific and medical literature does not establish evidence of a link between MDS and exposure to Agent Orange. The examiner explained that the only known risk factors are previous exposure to benzene, radiation, tobacco, or chemotherapy drugs or inherited genetic abnormalities such as trisomy 21, Fanconi anemia, Bloom syndrome, ataxia telangiectasia, and other benign hematologic diseases such as paroxysmal nocturnal hemoglobinuria and congenital neutropenia. As the Veteran did not have any of the mentioned risk factors, the examiner concluded that it is most likely that he had de novo MDS, which is the most common presentation. He noted that epidemiological studies consistently show that MDS occurs most commonly in older adults with a median age at diagnosis in most series of 65 years or older with a male predominance and reported that there is no link to the acute viremia in August 1962. The examiner reviewed the article "Agent Orange, United States Military Veterans, and Myelodysplastic Syndromes." from October 2012 by David P. Steensma, MD FACP and found that it failed to provide objective evidence linking MDS to previous Agent Orange exposure. However, the July 2017 examiner did opine that it is as least as likely as not that the Veteran’s MDS became so advanced that it compromised his immune system and made him more vulnerable to pneumonia. The examiner explained that infection is the leading cause of death for MDS patients and these infections are usually caused by neutropenia and granulocyte dysfunction and at the time of the pneumonia infection the Veteran had a low white blood cell count secondary to his advanced MDS. The VA obtained another opinion in July 2018. The examiner opined that MDS is less likely incurred in or caused by the August 1962 diagnosis of acute viremia or exposure to Agent Orange. The examiner noted that MDS has a very different course than the presumptive diseases associated with Agent Orange exposure and the most recent published update to the IOM Report (Update published Mar. 10, 2016) did not include MDS in a category for which their studies found an association with exposure to Agent Orange. The examiner also cited to the MDS International Foundation statement that doctors are unable to identify a specific cause for MDS in nine out of ten cases with the remaining cases resulting from treatment given for another cancer (alkylating agent chemotherapy and/or radiation therapy). Thus, he concluded that the most likely causes for any individual developing MDS are alkylating agent chemotherapy and radiation exposure, and beyond those factors there is little evidence of any specifically identifiable risk factors. The examiner reviewed the October 2012 article "Agent Orange, United States Military Veterans, and Myelodysplastic Syndromes" noting that it was not published in a peer reviewed medical publication and is neither a clinical study nor a review of the literature. In the article, the author, Dr. Steensma stated that the connection between MDS and Agent Orange exposure is “an area of controversy” and asserted that some Veteran’s contend that Agent Orange was mixed with various aromatic hydrocarbons but did not provide any objective evidence of such. Based on that assertion, Dr. Steensma concluded that there was exposure to benzene, which can adversely affect bone marrow; thus, shifting the argument from Agent Orange exposure to benzene exposure, which is not at issue in this case. The examiner noted that Dr. Steensma discussed several items not germane to the question at issue such as aplastic anemia, exposure to chemotherapeutic agents, and Board of Veterans’ Appeals judgments and financial interests. Furthermore, Dr. Steensma lauded the IOM but failed to discuss the many sequential IOM reports that never concluded there was evidence of an association between Agent Orange exposure and MDS. The examiner did point out and agreed with the statement that “a lot of people who served in Vietnam are now at the age where they might have gotten the disease anyway.” Ultimately, the examiner concluded that Dr. Steensma’s opinion failed to provide medical or scientific information about Agent Orange as an etiological factor in MDS, cited irrelevant evidence about exposure to benzene or chemotherapeutic or cytotoxic drugs and praised the composition and expertise of the IOM yet dismissed their repeated conclusions. Finally, the examiner reviewed all the medical records of the Veteran’s terminal hospitalization in January 2008 and concluded that the course of his illness was complicated by many factors that make a causal association with MDS very questionable. The examiner specifically noted an open lung biopsy showing interstitial fibrosis and explained that he felt the Veteran had acute interstitial fibrosis, sometimes referred to as Hamman-Rich syndrome based on the lung biopsy results, negative culture and stains for infectious organisms, and the imaging of December 27, 2007 suggesting ARDS and January 5, 2008 showing ground glass appearance. The examiner opined that the primary disorder was not infectious pneumonia and there is no specific evidence that MDS is a causal factor for Hamman-Rich syndrome or acute interstitial pulmonary fibrosis. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The lay evidence of record includes the statements from the Veteran’s family, stating that they believe his MDS is related to in-service exposure to Agent Orange and the testimony from the Board hearings. The Veteran’s family is competent to provide testimony as to the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, the Board notes that the Veteran’s son, Dr. Longshaw and his daughter A.L., are both medical professionals; therefore, they are both competent to provide medical opinions as they have knowledge of the interaction between multiple organ systems in the body and pathology and understand the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). At the August 2016 hearing, the appellant and her daughter A.L. testified that the Veteran received a diagnosis of MDS in December 2007 and that prior to his diagnosis he was very active. A.L. stated that her father’s lung capacity was baffling since he was not a smoker and testified that based on her research agent orange lays dormant for years, noting that the Veteran not only had a rare disease but also an unusual presentation of symptoms. The appellant also added that the Veteran’s progression from diagnosis to death was very rapid. At the September 2020 hearing, the appellant and her daughter A.L., Dr. Longshaw, and P.S. testified. The appellant testified that service connection is warranted as the Veteran was healthy prior to his diagnosis, did not smoke or drink but was exposed to Agent Orange during his two tours to Vietnam. P.S., the Veteran’s daughter, also testified to the fact that her father was active and healthy prior to the MDS diagnosis. Dr. Longshaw stated that it is his opinion that MDS resulted from Agent Orange exposure, echoing his prior written opinions that the Veteran’s symptoms over time were part of his syndrome of MDS. He further stated that while hospitalized the Veteran received treatment by oncologists, which included transfusions as he had all kinds of different illnesses related to MDS. These complications led to pneumonia and the Agent Orange set him up for MDS. Dr. Longshaw testified that it is his professional opinion that MDS is a direct result of Agent Orange exposure because of the effects it has on bone marrow and these conditions, such as white blood cell and platelet counts going down, manifested in the Veteran. A.L., a critical care nurse, testified that she concurred with the opinion of her brother, Dr. Longshaw, as Agent Orange lays dormant in the lungs and her dad was not a smoker so it did not make sense for his lungs to be so bad. At the hearing, the Veterans’ Law Judge concluded that the testimony received was truthful and credible. The first step for service connection for the cause of death, is to establish service connection for MDS. See Hupp, 21 Vet. App. 342, 352; 38 C.F.R. § 3.312. As previously noted, the record contains evidence that is both for and against entitlement to service connection due to herbicide exposure. The appellant cited to a prior Board decision granting service connection for MDS due to herbicide exposure and provided an article "Agent Orange, United States Military Veterans, and Myelodysplastic Syndromes" from October 2012 by David P. Steensma, MD FACP in support of her contentions. First, Board decisions do not establish precedent and are uniquely related to the facts and circumstances present in each particular case. 38 C.F.R. § 20.1303. The Board reviewed the decision but finds that the medical opinions of record which considered the specific details of this case have far greater probative value than prior the Board decision. Additionally, the Board reviewed the article provided by the appellant "Agent Orange, United States Military Veterans, and Myelodysplastic Syndromes." Both VA examiners of record found that the article did not provide evidence of a link between MDS and Agent Orange exposure. The July 2018 VA examiner provided a thorough evaluation of the article and concluded that Dr. Steensma’s opinion failed to provide medical or scientific information about Agent Orange as an etiological factor in MDS. The combined opinions regarding the competence and relevancy of Dr. Steensma’s article to the case at hand are persuasive. As such, the Board finds that the article has limited probative value. The positive nexus opinions of record are from Dr. Longshaw and A.L., a registered nurse. Both opine that MDS is the result of herbicide exposure that was dormant for years and manifested in several symptoms leading to the diagnosis of MDS. They testified that the Veteran did not smoke or drink and was relatively healthy prior to the diagnosis. Therefore, as the Veteran clearly had exposure to Agent Orange, which is known to affect bone marrow and cause other blood disorders, MDS is due to the Veteran’s in-service exposure. Conversely, the July 2017 and July 2018 VA examiners concluded that MDS did not incur in nor is the result of active service, to include due to herbicide exposure. In support of their opinion, they note that the Veteran did not have any of the mentioned risk factors; thus, making it most likely that he had de novo MDS, which is the most common presentation. The July 2018 examiner cited to the MDS International Foundation statement that doctors are unable to identify a specific cause for MDS in nine out of ten cases with the remaining cases resulting from treatment given for another cancer. He also cited the IOM Report (Update published Mar. 10, 2016), which did not include MDS in a category for which their studies found an association with exposure to Agent Orange. The Board finds the opinions of Dr. Longshaw and A.L. to be competent, credible and persuasive. Likewise, the Board also finds the opinions of the July 2017 and July 2018 VA examiners to be persuasive. Notably, all the medical opinions of record concur that the Veteran did not have any of the known established risk factors for MDS, such as alkylating agent chemotherapy and radiation exposure with the July 2018 examiner noting that beyond those factors there is little evidence of any specifically identifiable risk factors. Thus, when resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding that MDS was due to the Veteran’s conceded exposure to herbicide agents during service. Accordingly, the Board must now determine whether MDS was either the principal cause of death or contributed substantially or materially to the Veteran’s death. Dr. Longshaw and A.L. opined that MDS caused decreased white blood cells, which resulted in the inability to fight infections. Dr. Longshaw explained that the Veteran’s treating physician concluded that MDS made recovery impossible. Thus, while the cause of death was listed as pneumonia, the pneumonia occurred as a result of the MDS and its many complications. The July 2017 VA examiner also opined that it is as least as likely as not that the Veteran’s MDS became so advanced that it compromised his immune system and made him more vulnerable to pneumonia and infection is the leading cause of death for MDS patients. Conversely, the July 2018 examiner opined that the primary disorder was not infectious pneumonia but rather Hamman-Rich syndrome or acute interstitial pulmonary fibrosis and there is no specific evidence that MDS is a causal factor. The Board gives greater weight to the opinions of Dr. Longshaw, A.L. and the July 2017 examiner as they are consistent with the medical records, to include the medical note reporting the primary cause of death as pneumonia with the associated cause of MDS and the death certificate reporting pneumonia as the cause of death. As such, the Board finds the evidence establishes that MDS impeded the Veteran’s ability to fight infection and compromised his immune system; thus, contributing materially to his death by causing debilitating effects that rendered the Veteran materially less capable of resisting the effects of pneumonia. Accordingly, resolving all reasonable doubt in the appellant’s favor, service connection for cause of the Veteran’s death is granted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.