Citation Nr: 21040198 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-27 748 DATE: July 2, 2021 ORDER Service connection for acute myelocytic leukemia (AML) claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits/substitution purposes is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam (RVN) from October 6, 1967 to May 2, 1968; thus, his herbicide exposure is presumed. 2. The weight of the evidence of record does not show that the Veteran's AML had its onset during his active service, or that it is related to service, to include toxic herbicide exposure during his service in the RVN. CONCLUSION OF LAW The criteria for service connection for AML claimed as leukemia due to Agent Orange exposure, for purposes of accrued benefits/substitution purposes have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1966 to October 1968. The Veteran died in December 2011. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant withdrew her request for a live videoconference hearing. During the pendency of his claim, the Veteran died in December 2011. Within a year of his death, the Appellant filed a formal claim for dependency and indemnity (DIC), death pension, and accrued benefits (VA Form 21-534). In a February 2012 rating decision, the Appellant was awarded service connection for the cause of the Veteran's death. The Board notes that the issues before the Board here have been recharacterized as for substitution and/or accrued benefit purposes, and is adjudicated on the basis of substitution, allowing the Board to consider all evidence submitted in this case, to include evidence submitted both prior to and after the Veteran's death. The Appellant is seeking service connection for AML as due to herbicide agent exposure. Specifically, the Appellant claimed in her Notice of Disagreement that the Veteran's AML stemmed from his Agent Orange exposure during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as leukemia are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and as potentially relevant here, B-cell leukemias. 38 C.F.R. § 3.309 (e). In this case, after reviewing all evidence currently of record, the Board finds that the weight of the evidence is against service connection for AML because the evidence does not show that the Veteran's AML is directly or presumptively related to his service, that it arose within a year after separation, or that it is related to his toxic herbicide exposure. First, the Veteran served in the Republic of Vietnam during the years between 1967 to 1971; thus, he is presumed to have been exposed to Agent Orange in service. However, AML is not a disorder that VA considers to be presumptively related to toxic herbicide agent exposure under § 3.309. To this end, this question was specifically referred to a VA examiner in October 2014. After a review of the Veteran's medical record, to include his death certificate, the VA reviewer opined that AML is not a B-cell leukemia, and that it was is not classified as a Precursor B cell type, Peripheral B-Cell type, Precursor T cell type, Peripheral T-Cell type, Myelodysplastic syndrome, or Chronic Myeloproliferative Disorder. There is no other evidence that is supportive of the finding that AML is a B-cell leukemia. Accordingly, the Veteran's AML cannot be attributed to his acknowledged herbicide agent exposure on a presumptive basis. Next, although though her primary assertions have been addressed, the Appellant is not precluded from establishing service connection for AML with proof of actual direct causation during service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. Specifically, the Veteran's service treatment records show no treatment for or symptoms of leukemia or any blood disorder in service or at his separation exam in September 1968, or within the presumptive one-year period after separation. The Veteran was diagnosed with AML in February 2011, approximately forty three years after his separation. Appreciable symptoms of leukemia before then are not reflected by the evidence. Therefore, the clinical evidence does not establish service connection through continuity of symptomatology. Neither the Veteran, during his lifetime, nor the Appellant has never truly asserted that such symptoms have existed since service. Therefore, continuous symptoms have not been established. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between the Veteran's fatal AML and his active duty service. Here, there is one medical opinion and it is against the claim. The October 2014 VA examiner discussed the likelihood that the Veteran's service, particularly his presumed exposure to Agent Orange, had caused his AML. The examiner explained, as noted above, that AML is not a B-cell leukemia, and that it was is not classified as a Precursor B cell type, Peripheral B-Cell type, Precursor T cell type, Peripheral T-Cell type, Myelodysplastic syndrome, or Chronic Myeloproliferative Disorder. The examiner concluded, after a review of the Veteran's medical record and death certificate, that he was unaware of any medical literature that would provide clear evidence to support the above claim. There is no other opinion that is supportive of the claim on a direct service connection theory. Thus, the Board finds that the weight of the evidence is against the claim for service connection for AML due to Agent Orange exposure on a direct service connection theory basis for purposes of accrued benefits/substitution purposes, and it is denied. In this case, the Appellant and her representative are not competent to testify regarding the etiology of AML or any other blood disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. In addition, a well-substantiated medical opinion is required to link the Veteran's AML to service, especially when it relates to a blood disorder that can be caused by many factors. As such, the lay statements of belief that the Veteran's AML is related to his time in service, especially his exposure to Agent Orange, are found to lack competency. Therefore, based on the evidence of record, the claim for service connection for AML due to Agent Orange exposure on a direct service connection theory basis for purposes of accrued benefits/substitution purposes is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.