Citation Nr: 21009139 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-43 737 DATE: February 19, 2021 ORDER Entitlement to service connection for myelodysplastic syndrome (MDS) is granted. Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s MDS is related to his military service. 2. The Veteran’s death certificate lists the immediate cause of death as MDS. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for MDS are met. 38 U.S.C. §§ 1110, 1116, 1116A, 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 are met. 38 U.S.C. §§ 1110, 1116, 1116A, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303(a), 3.307, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1962 to June 1965. He died in March 2014. The appellant is his surviving spouse. In April 2014, the appellant submitted her application for dependency and indemnity compensation. A claim for accrued benefits includes an implied request for the appellant to be substituted for the Veteran in processing his pending claims to completion, pursuant to 38 C.F.R. § 3.1010(c)(2). In an August 2014 deferred rating decision, the RO noted the Veteran’s claim was pending at the time of his death, and that a proper notification to assist the appellant should be sent to her as a substituted claimant. From that time, the claim for service connection for MDS has been regarded as a one by a substituted claimant. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a hearing before the undersigned Veterans Law Judge in November 2020. A transcript is of record. The record was held open for 30 days to allow for the submission of additional evidence. Service Connection 1. Service connection for MDS Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Personnel records reflect the Veteran served in the United States Navy, recruited as a seaman. His DD-214 does not show a military occupational specialty. An October 2014 deferred rating decision documents the Veteran’s presumed exposure to an herbicide agent in that he was assigned to the USS Tomaston in November 1964 as the ship temporarily operated on the Vietnam inland waterways. A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a). The appellant contends that the Veteran’s MDS was caused by service. At the November 2020 Board hearing, the appellant testified that she had sought medical review by specialists regarding the Veteran’s MDS, include from Doctor E.W. and from Doctor S.G., renowned for their work on ongoing research pertaining to the disease. During his life, the Veteran told his wife that he was on ships that transported Agent Orange benzine chemicals to Vietnam. The appellant’s representative said an ordinary seaman would “usually get all the crummy jobs,” and the Veteran’s position could have required him to chip paint, use gasoline and fuel, and to clean parts with solvents. The Veteran wrote in January 2014 that he was diagnosed in October 2013 with MDS, a bone marrow failure disorder which is a pre-leukemia condition, and that he had a high-risk score with many chromosome abnormalities caused by exposures during service. The appellant wrote two statements to VA in March 2015 that her husband started out with MDS which became leukemia, and also that the ships he was on were carriers of the chemical which caused his illness. In a statement received February 2016, the appellant wrote that according to medical records an opinions of his doctors, the Veteran’s illness was caused by exposure to herbicides, pesticides, and chemicals during his service with the Navy in Vietnam. The appellant submitted a March 2001 abstract which stated that aetiological factors of MDS are largely unknown, with the exception of alkylating agents, ionizing radiation and benzene, and some other risk factors suggested by the few epidemiological studies reporter include solvents, ammonia, exhaust gases, metals, pesticides, and alcohol. Following a case-control study to assess the relationship between occupational or environmental factors and MDS, the authors of the article found relationships between MDS and smoking habits, gardening, occupations such as health professionals, technical and sale representatives, machine operators, agricultural workers, textile workers, and qualitative occupational exposures to oil, solvents, ammonia, pesticides, fertilizers, cereal dusts, contact with poultry or livestock and infective risk. The main risk factors of MDS were being an agricultural worker, textile operator, health professional, commercial and technical sale representative, machine operator, living next to an industrial plant, smoking, and lifetime cumulative exposure to oil. In a February 2014 consultation summary, received by VA in October 2020, Doctor G.S. from a university medical center cancer center wrote that 20 percent of individuals with MDS will evolve to acute leukemia. In an April 2014 letter, Doctor E.W. wrote that the Veteran was under his care for MDS, diagnosed in September 2013 and his disease was considered high risk based on his IPSS score. He wrote MDS is a neoplasm (malignancy) in almost all cases and is classified as a cancer by the World Health Organization and the U.S. National Cancer Institute. Etiological factors for MDS include alkylating agents, ionizing radiation and benzene, and risk factors suggested include solvents, ammonia, exhaust gases, metals, pesticides, and alcohol. In a December 2015 letter, Doctor E.W. wrote that during military service, the Veteran was exposed to multiple carcinogenic agents. Given the aggressive nature of the Veteran’s MDS and multiple chromosomal anomalies identified, Doctor E.W. believes the Veteran’s disease most likely progressed to leukemia at the time of his death. The doctor did not specify what type of leukemia, such as chronic B-cell which would be presumptively caused by his presumed exposure to Agent Orange on active duty. A January 2016 VA physician opined that the Veteran’s MDS was less likely than not from service. However, the rationale only discussed whether MDS is a B-cell lymphoma for the purpose of establishing service connection. This is inadequate as the VA physician did not discuss the likelihood of whether the MDS caused B-cell leukemia which would warrant presumptive service connection based on presumed Agent Orange exposure, and did not discuss whether the Veteran’s MDS was caused from service such as due to exposures on active duty. There is no affirmative evidence to explicitly contradict the argument that the Veteran was exposed to numerous chemicals while serving as a seaman, and this appears to be consistent with the places, types, and circumstances of his service. See 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). These chemicals are considered risk factors for developing MDS, which was explained by the Veteran’s own specialist Doctor E.W. and supported by research and testimony provided by the appellant and her representative. For the foregoing reasons, the Board finds that the evidence is at least evenly balanced that the Veteran’s MDS was caused by his military service. There is no medical opinion that is specifically contrary to a conclusion that the claimed MDS was directly related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection cause of death Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310(a). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In this case, the Veteran died in March 2014. His death certificate lists the immediate cause of death as MDS. There are no other conditions listed as contributing to the Veteran’s death. As explained above, the Board finds that the Veteran’s fatal MDS was caused by his experience serving on active duty. Therefore, service connection for the cause of the Veteran’s death is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, Associate 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.