Citation Nr: 21015626 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-16 834 DATE: March 18, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT The Veteran’s leukemia was due to his military service and this leukemia caused or contributed substantially or materially to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3. 309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to September 1970 including service in the Republic of Vietnam with the award of the Combat Action Ribbon. The Veteran passed away in February 2013. The appellant is the Veteran’s surviving spouse. In September 2018, the appellant testified at a hearing before the undersigned. A transcript of the hearing is associated with the claims file. In August 2019, the Board of Veterans’ Appeal (Board) denied the appeal. The appellant appealed the August 2019,Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 order, that incorporated that parties Joint Motion for Remand (JMR), the Court vacated and remanded the Board’s August 2019 decision. Entitlement to service connection for the cause of the Veteran’s death The appellant asserts, in substance, that service connection is warranted for the cause of the Veteran’s death. During her hearing and in writings to the RO she essentially argued that the leukemia noted on the Veteran’s Certificate of Death as a contributing cause of death was etiologically related to his exposure to herbicides during service in the Republic of Vietnam. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability which was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause. 38 C.F.R. § 3.312(c)(3). In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that at the Veteran died in February 2013. The Veteran’s February 2013 Certificate of Death lists the immediate cause of death as intercranial hemorrhage and list’s as a significant condition contributing to death leukemia. At the time of his death, the Veteran was not service-connected for any disability. Therefore, the Board will first consider the appellant’s claim that the Veteran should have been service-connected for leukemia during his lifetime. This is a key question. In this regard, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). The list of diseases associated with exposure to certain herbicide agents is as follows: parkinsonism, bladder cancer, hypothyroidism, AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B–cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non–Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Initially, the Board finds that the Veteran had a diagnosis of leukemia. See, e.g., Certificate of Death dated in February 2013. Next, the Board notes that the Veteran’s service personnel records show that he served in the Republic of Vietnam from March 1969 to September 1970. Therefore, the Board finds that it is presumed that the Veteran had herbicide exposure even though he was not diagnosed with a 38 C.F.R. § 3.309(e) disability. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). Lastly, the Board notes that in December 2020 Christopher King, Ph.D., M.D., a Professor of Radiation Oncology and Urology, opined, in substance, that the Veteran’s leukemia was due to his exposure to herbicides while on active duty. In this regard, the Board finds Dr. King’s opinion the most probative evidence of record because it was provided after a review of the record on appeal as well as because it is supported by ciation to evidence found in the record, controlling medical literature, and because it is not contradicted by any other medical evidence of record. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s leukemia was due to his military service and service connection was warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Stefl, supra. Given the above finding that the Veteran should have been service-connected for leukemia during his lifetime, the Board will next consider whether it caused or contributed substantially or materially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In this regard, and as noted above, the February 2013 Certificate of Death reported that leukemia was a significant condition contributing to the intercranial hemorrhage that caused the Veteran’s death. The Board finds that this opinion the most probative evidence of record because it was provided after an examination of the Veteran as well as because it is not contradicted by any other medical evidence of records. See Owens, supra; Also see Colvin, supra. In reaching the above conclusion, the Board has not overlooked the April 2016 VA examiner’s opinion. However, that examiner did not provide any opinion as to the relationship between the Veteran’s service-connected leukemia and the cause of his death. (Continued on the next page)   Under such circumstances and granting the appellant the benefit of any doubt in this matter, the Board concludes that the Veteran’s leukemia contributed substantially or materially to cause his death. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Therefore, the Board concludes that service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.