Citation Nr: 21032152 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-46 044A DATE: May 26, 2021 ORDER Service connection for the cause of the Veteran's death is granted. FINDING OF FACT Resolving any doubts in the Appellant's favor, the Veteran's death was caused by a myelodysplastic syndrome (MDS), which led to leukemia, due to herbicide agent exposure during service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from February 1966 to December 1969. The Veteran died in December 2014. The Appellant is the Veteran's surviving spouse. The Appellant sought a hearing by videoconference as part of her appeal. A hearing was scheduled for November 2019. While the electronic record does not include a hearing transcript, the Board can dispose of this claim without any undue prejudice to the Appellant. Service Connection Cause of Death Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To establish entitlement to service connection for the cause of a Veteran's death, the evidence of record must show that a service-connected was either a principal or a contributory cause of death. A disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran served in Vietnam from June 1967 to June 1968. The Veteran's stated that he handled agent orange during his time in Vietnam. See June 2012 Statement in Support of Claim: November 2012 Correspondence. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected even though there is no record of such disease during service. For the purpose of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operation in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. Exposure to herbicide agents is presumed for veterans who serve in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Therefore, the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii). MDS is not included in the list of diseases that are presumed to be due to exposure to herbicide agents. 38 C.F.R. § 3.309(e). Although there is not a presumption that the Veteran's MDS is associated with exposure to herbicide agents, the Veteran's cause of death of service connection can still be connected if there is a nexus between exposure to agent orange and the Veteran's death. See 38 U.S.C. § 1101; Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran died of leukemia. See Death Certificate. Medical records indicate that the Veteran's leukemia was the result of MDS. See May 4, 2012 letter from J.L, MD. The oncologist that treated the Veteran's MDS stated that the MDS may have been caused by the Veteran's past exposure to agent orange. See August 2015 letter from J.L, MD. The oncologist is competent to provide this opinion, as such the Board finds it to be credible and is afforded great weight. Medical studies in the record tend to support this opinion. Since no additional evidence on this point is available, the Board will resolve any doubts in the Appellant's favor and conclude that MDS is associated with herbicide agent exposure and caused the Veteran's death. The Board is reminded that seeking to obtain negative evidence against the Veteran is prohibited by VA law. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). (Continued on the next page) Accordingly, the Board finds that service connection for the cause of the Veteran's death is warranted. The evidence of record establishes that the Veteran's MDS and leukemia was caused by exposure to herbicide agents. As such, the Board finds that the criteria for service connection for the cause of the Veteran's death have been met and the claim is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.