Citation Nr: 21026094 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-28 201 DATE: April 29, 2021 ORDER Entitlement to service connection for acute myelogenous leukemia (AML), to include as due to exposure to environmental hazards, on a substitute claim basis, is granted. Entitlement to service connection for cause of the Veteran's death is granted. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran’s acute myelogenous leukemia (AML) was caused by his exposure to hazardous chemicals during service. 2. The Veteran died in April 2015; acute myelogenous leukemia (AML) is one of the underlying causes of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for acute myelogenous leukemia, to include as due to exposure to environmental hazards, on a substitute claim basis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1980 to September 1984 and from February 1985 to February 1989. The Appellant was afforded a hearing before the undersigned in December 2020. A copy of that transcript is of record. The Veteran died in April 2015. The appellant in this case is the Veteran’s surviving spouse who has been properly substituted. 38 C.F.R. § 3.1010. Under this statute, an eligible person may process any pending claims to completion following the death of a veteran. Such request must be filed not later than one year after the date of the Veteran’s death and, as provided for in the provision, a person eligible for this substitution will include “a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title....” Id.; 38 U.S.C. § 5121A. In April 2015, within a year from the Veteran’s death, the Appellant filed a request to substitute for the Veteran in the claims under appeal at the time of his death. The substitution request was granted in March 2021. Thus, the claim of entitlement to service connection for acute myelogenous leukemia, to include as due to exposure to environmental hazards, is properly before the Board with the Appellant substituting for the deceased Veteran. 1. Entitlement to service connection for acute myelogenous leukemia (AML), to include as due to exposure to environmental hazards, on a substitute claim basis. The Appellant asserts that service connection for AML is warranted. Specifically, both the Appellant and the Veteran assert that AML is related to active service because the Veteran was stationed in El Toro, California, the housing of which was subsequently found to have multiple carcinogens detected in the water including Benzene and trichloroethene. At her December 2020 hearing, the Appellant testified that several scientists at the Center for Disease Control (CDC) and the Environmental Protection Agency (EPA) have conceded that the El Toro base was decommissioned because of the contamination of hazardous chemicals, the Veteran was stationed at the base during the applicable time period identified, and the Veteran was diagnosed with a disease identified as being associated with exposure to the hazardous chemicals identified. Initially, the Board notes that military personnel records confirm the Veteran was stationed on base at El Toro from at least 1986 to 1988. Exposure to environmental hazards has previously been conceded by the Agency of Original Jurisdiction (AOJ). A post-service statement from the Veteran’s treating physician confirms diagnosis and treatment of AML in July 2014. Therefore, the Board must only determine whether a nexus exists between the Veteran’s diagnosed AML and exposure to hazardous chemicals during active service. There is conflicting evidence as to the etiology of the Veteran’s diagnosed AML. A September 2015 VA medical opinion provided a negative etiology. In support of his opinion, the examiner stated that the risk of AML rises when there is exposure to certain toxins, including benzene. The examiner stated that the Veteran’s development of AML 24 years after service discharge, when a piece of medical literature referenced detailed that benzene exposure would cause AML after a median latency of about 12 years, supported that the Veteran’s AML was not caused by exposure to chemicals during active service. The examiner further noted that he was unaware of medical literature that would provide evidence that benzene and other chemicals would predispose a person to AML more than 20 years after exposure. In support of the Appellant and Veteran’s claim, the Veteran submitted an October 2014 private opinion from Dr. R.S. which detailed that the physician was currently treating the Veteran for AML. At the time of the opinion, Dr. R.S. was the chief of hematologic malignancies at the Dana-Farber Cancer Institute as well as a Professor of Medicine at Harvard Medical School. The physician noted that he was aware of the Veteran’s military history of beings stationed in El Toro, California and that the site was subsequently declared an EPA superfund site with a multitude of carcinogens such as Benzene, Trichloroethene, and Tetrachloroethylene found at the site in the soil and water. Dr. R.S. opined that the exposure the Veteran experienced during his time in the military placed him at a higher risk for development of leukemia as the agents noted at the base lead to both myelodysplastic syndromes and AML. The Appellant has also submitted an October 2009 medical journal article and newspaper articles that detail scientific studies which find correlation between exposure to hazardous carcinogens such as Benzene, Trichloroethene, and Tetrachloroethylene and development of AML. The medical journal article, “Risk of Benzene-Induced Leukemia: A Sensitivity Analysis of the Pliofilm Cohort with Additional Follow-up and New Exposure Estimates”, provided an exposure latency formula and table to demonstrate risk of leukemia development over time with level of chronic exposure to Benzene. After review of the evidence of record, the Board finds that the Veteran’s AML was related to his exposure to hazardous chemicals during active service. The Board notes that while the September 2015 VA examiner’s opinion conceded the Veteran’s exposure to toxic chemicals during active service and noted that exposure is known to cause AML, the examiner provided a negative etiologic opinion based solely on one medical journal article which determined median latency for development was 12 years. The examiner further based his negative etiologic opinion on the fact that he was unaware of medical literature that would provide evidence of a longer latency period. In direct contrast to the September 2015 examiner’s finding, the October 2009 medical journal article submitted provides that in a situation of chronic exposure, the latency of development peaks at around 10 years but continues to 35 years before risk of leukemia development from exposure drops to a nonprobable level. As the September 2015 VA examiner’s opinion was based on general assertions which were unspecific to the Veteran’s specific situation, and was based on an assertion which the evidence of record has directly refuted, the Board affords this opinion little probative weight. Mattern v. West, 12 Vet. App. 222, 228 (1999). Instead the Board relies on the private opinion of Dr. R.S. who provided a positive etiologic opinion. The Board notes that Dr. R.S. is a medical expert in the specific area of hematologic malignancies and took into consideration all the relevant facts in providing his opinion, to include the Veteran’s conceded assertions of exposure and post-service medical records. Thus, the Board affords this opinion probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds the evidence is sufficient to establish the Veteran’s AML was due to his active military service, and the claim for entitlement to service connection, on a substitute claim basis, is granted. 2. Entitlement to service connection for cause of the Veteran's death. The Appellant also asserts that she is entitled to service connection for the cause of the Veteran’s death. The Veteran’s death certificate lists respiratory failure as the immediate cause of death with AML listed as the underlying cause of death. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To constitute the principal cause of death, a service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. To be a contributory cause of death, the service-connected disability must have contributed substantially or materially to cause death; combined to cause death; or aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death; rather, it must be shown that there was a causal connection between the service-connected disability and the veteran’s death. 38 C.F.R. § 3.312 (b), (c). If the evidence shows that the veteran died of a disorder that was ultimately related to his military service, the regulations do not require a service-connected disability to be the primary cause of death, only to be “etiologically related” or “causally connected.” 38 U.S.C. § 1310; 38 C.F.R. § 3.312. As entitlement to service connection for AML on a substitute claims basis has been granted herein, the Board finds that the Veteran’s death was due to military service, and the Appellant’s claim for entitlement to service connection for the Veteran’s cause of death is granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.