Citation Nr: 21014798 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 20-16 113 DATE: March 15, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. INTRODUCTION The Veteran served on active duty from October 1965 to June 1969. The Veteran died in April 2018. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Appellant testified at a hearing before the undersigned Veterans Law Judge.   FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during his active duty. 2. A certificate of death lists chronic myelomonocytic leukemia as the direct cause of the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310; 5107; 38 C.F.R. §§ 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant claims that the Veteran’s cause of death was chronic myelomonocytic leukemia and that chronic myelomonocytic leukemia was due to the Veteran’s in-service exposure to an herbicidal agent. Absent affirmative evidence to the contrary, there is a presumption of exposure to an herbicidal agent (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). The list of diseases presumed related to exposure to herbicide agents includes B-cell leukemia. 38 C.F.R. § 3.309(e). Certain chronic diseases, such as B-cell leukemia, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran’s service records demonstrate that he served within the land borders of the Republic of Vietnam, and there is no affirmative evidence that he was not exposed to an herbicidal agent. Consequently, the Veteran is presumed to have been so exposed. The evidence of record included a death certificate demonstrating that chronic myelomonocytic leukemia directly caused the Veteran’s death. The salient question presented by this claim is whether the Veteran’s chronic myelomonocytic leukemia is etiological related to his in-service exposure to herbicidal agents. The evidence of record includes two opinions that address this question. In a May 2018 letter, ML, M.D., Ph.D., Professor of Oncology, Medicine, and Pharmacology, Director of Adult Leukemia Service, Division of Hematologic Malignances at Johns Hopkins, provided an opinion. Dr. ML discussed the difficulty classifying the Veteran’s leukemia, ultimately determining that there was an overlap syndrome between myelodysplasia and myeloproliferation. Because the genetic mutation profile fit either diagnosis and the treatment for regimen was the same for both, further classification was unnecessary. The doctor indicated that the Veteran did not have a family history of hematologic malignancies or cancers. Further, Dr. ML explained that most myeloid leukemias occur late in life, and in some cases, there is either a family history of such disease, or the patient was previously treated with chemotherapy for another cancer. Dr. ML acknowledges that, more often than not, doctors are unable to ascribe anything causative. With that said, however, Dr. ML opined as follows: In the case of [the Veteran], I believe that his exposure to Agent Orange during his time of service in the Vietnam War more likely than not contributed to his developing myeloid leukemia…There is adequate documentation in the medical literature of the epidemiological association between the dioxin found in Agent Orange and the development of chronic leukemia through mutation and the development of shortened telomeres. Much of this is based on recent advances in our understanding of the pathobiology of leukemogenesis. In October 2018, the RO obtained an opinion from a VA examiner, credentialed as a physician and Director of the Compensation and Pension Services. After reviewing the evidence of record, including Dr. MLs May 2018 opinion, and appropriate medical literature, the examiner opined that the Veteran’s cause of death was less likely than not caused by or a result of military service. The examiner then proceeded to assess Dr. MLs opinion. The examiner then discussed whether the Veteran’s leukemia was classified as B-cell leukemia, such that presumptive service connection would be warranted for his presumed in-service exposure to herbicidal agents. See 38 C.F.R. § 3.309. The examiner found that the Veteran’s leukemia was not B-cell leukemia. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The October 2018 VA examiner’s opinion is limited to assessing another doctor’s opinion and determining whether the Veteran’s leukemia qualifies for presumptive service connection. Although service connection for the claimed disabilities is not available on a presumptive basis due to his exposure to an herbicidal agent, service connection is still available on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). The VA examiner did not address whether there is an etiological relationship between the Veteran’s presumed in-service exposure to herbicidal agents and his cause of death on a direct basis. Dr. ML addresses this question in his May 2018 opinion. For this reason, the Board finds Dr. MLs opinion more persuasive. The record is otherwise negative for evidence that disassociates the Veteran’s chronic myelomonocytic leukemia from his active duty. Accordingly, the Board finds that service connection for chronic myelomonocytic leukemia as the direct cause of the Veteran’s death is warranted. See 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.312. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.