Citation Nr: 21028194 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-11 000 DATE: May 10, 2021 ORDER Service connection for the cause of death of the Veteran is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed as moot. FINDINGS OF FACT 1. The Veteran died in December 2015; the underlying cause of death was acute myelogenous leukemia (AML). 2. Resolving all reasonable doubt in favor of the Appellant, the Veteran's AML was due to herbicide agent exposure during service. 3. Since the Veteran's cause of death is service connected, no benefit remains to be awarded under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of death of the Veteran are met. 38 U.S.C. §§ 1101, 1102, 1110, 1112, 1113, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. The claim for DIC under 38 U.S.C. § 1318 is moot. 38 U.S.C. §§ 1318, 7105; 38 C.F.R. §§ 3.22, 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1972 in the U.S. Navy. The Veteran died in December 2015. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Appellant testified before the undersigned Veterans Law Judge at a virtual Board hearing in April 2021. This appeal has been activated under the "one-touch" program, and as such, a transcript of the hearing will be associated with the claims file at a later date. DIC Service Connection for the Cause of Death of the Veteran DIC is 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. 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). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. The Veteran's Death Certificate states that the immediate cause of death was septic shock with bacteremia, with underlying severe pancytopenia and AML, and other contributing conditions including pulmonary embolism, atrial fibrillation, acute renal failure, malnutrition, and history of hypertension. The Appellant contends that the Veteran's death from the underlying cause of AML was due to in-service exposure to herbicide agents. The record shows that the Veteran served in Vietnam from October 1969 to September 1970. See Military Personnel Record received August 2008. Therefore, the Veteran is presumed to have been exposed to herbicide agents during service. While the Board recognizes that AML is not currently among the listed diseases and conditions that may be presumptively service-connected based on exposure to herbicide agents under 38 C.F.R. § 3.309(e), that does not preclude the claim for service connection to be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In November 2015, the Veteran's physician stated that it is possible that the Veteran's AML developed as a result of exposure to Agent Orange. See CAPRI received June 2017. A VA medical opinion was obtained in December 2017. The VA physician opined that it is less likely than not that the Veteran's conceded in-service exposure to Agent Orange contributed to his death. The physician stated that the recognized presumptive medical conditions have been put into law after study by the National Institutes of Health (NIH), and AML is not a presumptive condition of Agent Orange exposure. The Board finds that this medical opinion is inadequate for adjudication purposes because the physician failed to address whether the Veteran's AML is related to herbicide agent exposure on a direct basis. The Appellant submitted a private medical opinion in May 2018 from an oncologist. The private physician opined that the Veteran's AML with myelodysplasia-associated changes is more likely than not due in part due to exposure to Agent Orange during his military service. The Board finds this opinion to be adequate and highly probative as the physician considered the Veteran's medical history and provided clear conclusions with supporting data and reasoned explanations. Accordingly, resolving all reasonable doubt in the Appellant's favor, the Board finds that the criteria for service connection for AML as due to in-service exposure to herbicide agents have been met and the appeal for service connection for the cause of the Veteran's death is granted. The Board notes that as service connection for the cause of the Veteran's death has been granted based on the relationship between the Veteran's AML and in-service herbicide agent exposure, there is no need to further address the Appellant's contention that ischemic heart disease was a contributing factor of the Veteran's death. DIC Under 38 U.S.C. § 1318 In light of the grant of benefits described above, the Appellant's DIC claim is rendered moot. In that regard, entitlement to VA benefits under 38 U.S.C. § 1310 is the greater benefit, see Moffitt v. Brown, 10 Vet. App. 214, 224 (1997), and it has been granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Furthermore, the Court has indicated that VA is required to also consider an appellant's claim under the provisions of 38 U.S.C. § 1318 only if a claim for service connection for the cause of the veteran's death is denied under 38 U.S.C. § 1310. See Timberlake, 14 Vet. App. at 134-35. For the foregoing reasons, the claim for entitlement to DIC under 38 U.S.C. § 1318 is dismissed as moot. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.