Citation Nr: 21015282 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-31 816 DATE: March 17, 2021 ORDER Entitlement to accrued benefits for service connection for chronic myelomonocytic leukemia (CML), as due to exposure to herbicides, is granted. Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicide agents, such as Agent Orange. 2. The Veteran was first diagnosed with CML in October 2009. 3. The Veteran’s death certificate shows that he died in August 2010; the immediate cause of death was sepsis due to Graft Versus Host Disease as a consequence of CML. 4. The Veteran had no service-connected disabilities at the time of his death; however, a claim for service connection for CML was pending. 5. The evidence is at least in equipoise to support a finding that the Veteran’s CML was causally or etiologically due to exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for the award of accrued benefits for entitlement to service connection for CML have been met. 38 U.S.C. §§ 1110, 5121; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000. 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1103, 1310; 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1967, to include service in the Republic of Vietnam. The Veteran died in August 2010. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Board denied the issues of entitlement to service connection for bilateral hearing loss and hepatitis and remanded the issues of entitlement to service connection for CML, tinnitus, and the cause of the Veteran’s death. In April 2018, the Board denied entitlement to service connection for tinnitus, CML, and the cause of the Veteran’s death. The Appellant appealed the April 2018 Board decision to the Court of Appeals for Veterans Claims (CAVC). In November 2018, CAVC granted a Joint Motion for Remand (JMR), which partially vacated the April 2018 Board decision and remanded the issues to the Board for further development. It was determined that the issue of entitlement to service connection for tinnitus was abandoned. In May 2019, the Board remanded the appeal for further development; there has been substantial compliance with the Board’s previous remand directives. Entitlement to accrued benefits for service connection for chronic myelomonocytic leukemia (CML) The Veteran died in August 2010. At the time of his death, he had a claim pending for entitlement to service connection for CML. The Appellant’s claim for accrued benefits is based upon the resolution of the underlying claim for service connection. The Appellant contends that the Veteran was entitled to service connection for chronic myelomonocytic leukemia (CML), as secondary to herbicide agent exposure based on his service in the Republic of Vietnam. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. 38 U.S.C. §§ 1110; 38 C.F.R.§ 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases such as leukemia may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that if a veteran was exposed to an herbicide agent such as Agent Orange during active service in Vietnam, presumptive service connection is warranted for certain disorders, including all chronic B-cell leukemias. 38 C.F.R. §§ 3.307, 3.309(e). However, CML is not the type of leukemia for which presumptive service connection is warranted. See 38 C.F.R. § 3.309(e). Service connection can also be established with proof of actual direct causation. Combee v. Brown,34 F.3d 1039 (Fed.Cir. 1994); McCartt v. West,12 Vet. App. 164, 167 (1999). The Veteran was diagnosed with CML in October 2009, supported by a bone marrow biopsy favoring the presence of CML. The Veteran’s private physician, Dr. L.P. submitted a letter dated June 2011 which stated that the Veteran was “my patient and received tx for Chronic Myelomonocytic Leukemia until his death [in August 2010]. [The Veteran] was exposed to Agent Orange. Agent Orange has been implicated in the development of hematological disorders. We cannot rule out causative affect in this particular situation.” In September 2012, the same physician, Dr. L.P., submitted an additional letter. The first paragraph was identical to the above referenced June 2011 letter, but added a sentence which stated that the “ultimate cause of [the Veteran’s] death was complications related to Graft Versus Host Disease but had he not developed Leukemia and required treatment with Stem Cell Transplant he would not have acquired this disease.” A December 2012 VA medical opinion stated that the Veteran’s CML was not a B-cell leukemia and provided a lengthy discussion of the various types of leukemias addressed in multiple medical references. The Veteran’s private physician, Dr. L.P., submitted another letter dated December 2014 which added the sentence that it “is possible that [the Veteran’s] exposure to [Agent Orange] in the Vietnam War caused his leukemia.” In March 2017, the same VA staff physician from December 2012 referenced his prior opinion and restated that “CML differs from B-cell leukemia, [and] is not a presumptive AO condition, while B-cell leukemia is.” He also cited the medical reference UpToDate for the proposition that herbicide exposure is not a risk factor for the development of CML and that exposure to ionizing radiation is the only known risk factor for CML. Therefore, the March 2017 VA physician opined that it is less likely than not that the Veteran’s chronic myelomonocytic leukemia was incurred in or due to his active duty, including his exposure to an herbicidal agent. Finally, in June 2017, Dr. L.P. submitted another letter on the Veteran’s behalf which stated that the Veteran “was my patient and received treatment for Chronic Myelomonocytic Leukemia until his death [in August 2010]. [The Veteran] was exposed to Agent Orange. Agent Orange has been implicated in the development-of hematological disorders. It is more probable then (sic) not that his exposure to this agent in the Vietnam War caused his leukemia. The ultimate cause of [the Veteran’s] death was complications related to Graft Versus Host Disease, but had he not developed Leukemia and required treatment with Stem Cell Transplant he would not have acquired this disease.” In January 2020, a VA opinion stated that leukemia is an accepted automatic condition related to agent orange exposure and that the Veteran had a confirmed diagnosis of CML from October 2009. In April 2020, the RO secured another medical opinion to investigate whether or not the Veteran’s CML was causally related to in-service exposure to herbicides. The opinion was also to specifically address facts, arguments and theories raised in the January 2018 appellate brief, including whether benzene was a component of Agent Orange and a risk factor for CML. The VA opinion concluded that they were not. As a rationale for the conclusion, the examiner noted VA has determined that a positive association does not exist between exposure to herbicides and the subsequent development of CML and that CML is not a condition subject to service connection as presumptive to herbicide exposure. Additionally, he noted that CML is classified as a myeloid leukemia and is not a B-cell leukemia. He cited the “UpToDate” publication for the premise that exposure to ionizing radiation is the only known risk factor for the clinical manifestations and diagnosis of chronic myeloid leukemia. The examiner also pointed to Harrison’s Principles of Internal Medicine, 20e, Chapter 101 for the principle that with respect to the risk of developing CML, no etiological agents are incriminated, and no association exists with exposure to benzene or other toxins, fertilizers or insecticides. The VA examiner stated that exposure to ionizing radiation (e.g. nuclear accidents, radiation treatment for ankylosing spondylitis or cervical cancer) increases the risk of CML, which peaks at 5 to 10 years after exposure and is dose related. He concluded by reiterating that herbicide agents (including the benzene component) is neither a known cause, nor even a recognized risk factor for the development of CML and therefore it is less likely than not that the Veteran’s CML was due to (or aggravated by) exposure to Agent Orange or other herbicides (including the benzene component) during military service. Finally, the record also includes a medical opinion by a private internist, Dr. S.B., submitted in September 2020. The opinion reflects a review of primary care physician records, private medical records from other sources and service treatment records. The letter includes a selective summary of the Veteran’s treatment records from October 2009 to April 2020, to include VA records from that period. Dr. S.B. acknowledged that while CML is not on the approved VA list of diseases showing an association to herbicide agent exposure, Agent Orange contains benzene which has been shown in literature to be a strong risk factor for malignancy. He also asserted that numerous literature findings have shown occupational hazards, including exposure to benzene, as having strong risk factors for CML, and that it is widely accepted that benzene can cause hematological diseases. Dr. S.B. also noted that the etiology of CML in this case is unknown, but opined that it is the inherent part of Agent Orange that has caused a significant contribution to the Veteran’s disease process, as there are no other risk factors, other than benzene, that predispose the Veteran to CML. Dr. S.B. also took exception to the VA examiner’s reliance upon the medical findings in Harrison Internal Medicine, noting that there were no less than 11 contradicting professional research studies proving that benzene has a strong nexus to CML. As to a connection between CML and benzene, the physician made multiple references to research studies within the body of his opinion to support that premise. The private opinion concluded by finding that the Veteran’s diagnosis of CML was at least as likely as not secondary to his presumed exposure to Agent Orange while enlisted in the military. In response to the April 2020 VA opinion, the Appellant’s representative submitted an appellate brief in September 2020. The gravamen of that objection was that the April 2020 VA opinion lacked validity, provided an inadequate opinion and rationale and was outweighed by the most probative evidence supporting the appeal. The VA opinion was challenged as inadequate in multiple areas. As to the finding that CML is not a condition subject to service connection as presumptive to herbicide exposure, the brief argues this fact is not dispositive of the claim, citing Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), because service connection may still be established by a showing of a direct nexus between the disease and service. In summary, the representative argued that the September 2020 private medical opinion establishes there is a causal connection between the Veteran’s CML and herbicides (to include benzene) in that it is fully accurate and supported by fully articulated sound reasoning for its conclusions. Analysis As noted, the Veteran was diagnosed with CML in October 2009. As such, Shedden element (1), current diagnosis, is met. The evidence of record establishes that the Veteran had service in the Republic of Vietnam; exposure to herbicides during service is conceded. As such, Shedden element (2), an in-service event, is met. Regarding Shedden element (3), a nexus, the Board acknowledges conflicting medical evidence presented by VA examiners in December 2012, March 2017, and April 2020 and multiple private physicians’ opinions to include December 2014, June 2017 and September 2020, evaluating the Veteran’s condition prior to his passing. Based on the above, the Board finds the private medical opinions more persuasive. Those opinions adequately addressed and supported the issues, factual allegations and theories presented by the Appellant. The opinions by Dr. L.P. and Dr. S.B. reflect personal experience treating the Veteran for extended periods of time, personal knowledge of the medical history, review of the Veteran’s record, and included conclusions supported by substantial rationales, references to research and consideration of relevant medical evidence and history. In contrast, the Board assigns lesser weight to the VA medical opinions, as the examiners did not provide an adequate rationale for their negative findings given that the Veteran was presumptively exposed to herbicide agents and the nexus between his post-separation manifestation of CML and that presumed exposure was not adequately addressed. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Thus, in light of the most probative evidence, the Board finds that a nexus has been established between the Veteran’s CML and his presumed in-service Agent Orange exposure. As such, Shedden element (3), nexus, is met. Accordingly, as all three elements have been met, entitlement to service connection for CML, on an accrued benefits basis, is warranted. The claim is granted. Entitlement to service connection for the cause of the Veteran’s death The Appellant asserts that the Veteran’s cause of death was due to his active service. To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). The evidence in this appeal establishes that the Veteran’s CML contributed substantially or materially to the production of the Veteran’s death or at a minimum aided or lent assistance to the production of his death. The Veteran’s death certificate lists sepsis as his immediate cause of death, with graft versus host disease and chronic myelomonocytic leukemia as underlying causes. As a result of this Board decision, the Veteran is now service connected for chronic myelomonocytic leukemia; as such, his cause of death should also be service connected. The claim for entitlement to service connection for the cause of the Veteran’s death is granted. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.