Citation Nr: 22016545 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 11-13 716 DATE: March 22, 2022 ORDER Entitlement to service connection for non-Hodgkin's lymphoma (NHL) for accrued benefits purposes is granted on a presumptive basis. Entitlement to service connection for diabetes mellitus type II for accrued benefits purposes is granted on a presumptive basis. Entitlement to service connection for peripheral neuropathy for accrued benefits purposes is granted on a secondary basis. Entitlement to service connection for the Veteran's cause of death is granted. FINDINGS OF FACT 1. The Veteran was at least as likely as not exposed to herbicide agents by handling and performing other veterinarian duties on wet dogs from the Republic of Vietnam; the Veteran's NHL manifested to at least a compensable degree before his death. 2. The Veteran was at least as likely as not exposed to herbicide agents by handling and performing other veterinarian duties on wet dogs from the Republic of Vietnam; the Veteran's diabetes mellitus type II manifested to at least a compensable degree before his death. 3. The Veteran's peripheral neuropathy was at least as likely as not secondary to his NHL. 4. The Veteran at least as likely as not committed suicide to relieve the mental and physical anguish due to his NHL and associated conditions. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for NHL for accrued benefits purposes have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 2. The criteria for entitlement to service connection for diabetes mellitus type II for accrued benefits purposes have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria for entitlement to service connection for peripheral neuropathy for accrued benefits purposes have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 4. The criteria for entitlement to service connection for the Veteran's cause of death for accrued benefits purposes have been met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from June 1968 to December 1972. Unfortunately, the Veteran passed away in March 2007; the Appellant is his surviving spouse. In June 2016, the Appellant testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a November 2016 Decision, the Board remanded all issues herein. In a December 2019 Decision, the Board denied all issues herein. In a September 2020 Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the December 2019 Board Decision and remanded all issues herein. In a February 2021 Decision, the Board remanded all issues herein. 1. Entitlement to service connection for NHL for accrued benefits purposes If a veteran was exposed to herbicide agents during service, then presumptive service connection may be established for certain conditions, including NHL and diabetes mellitus type II, that become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran and Appellant have generally contended that the Veteran was exposed to herbicide agents by handling and performing other veterinarian duties on wet dogs from the Republic of Vietnam; specifically, the Veteran reported that the dogs with which he had prolonged and direct contact in Okinawa were often wet (saturated in Agent Orange) when transported directly to him from the Republic of Vietnam for checking, bathing, and examination for reentry or euthanasia. See October 2002 Third Party Correspondence; December 2002 VA Form 21-526; November 2002 private opinion by Dr. MWM; February 2003 Statement; February 2003 VA examination; April 2003 Correspondence; June 2003 Notice of Disagreement (NOD); December 2003 Statement; May 2004 VA Form 9; November 2005 Congressional Correspondence; March 2008 VA Form 21-534; June 2008 Statement; September 2008 private opinion by Dr. TAB; September 2008 private opinion by Dr. WML; July 2009 Correspondence; May 2011 VA Form 9; April 2015 Photographs; February 2016 Correspondence by DS (fellow servicemember in veterinary field); June 2016 Board Hearing transcript; July 2016 Correspondences; July 2016 Statement by KP (fellow servicemember handling dogs); July 2016 Statement; October 2019 Statement by Dr. WML; November 2019 Brief; September 2020 Court JMR; December 2020 Brief; January 2021 Brief; December 2021 VA examinations. Not only have fellow servicemembers corroborated the Veteran's contention of frequent, direct, and prolonged exposure to wet dogs crossing the Republic of Vietnam border based on his duties as a veterinarian, but Dr. WML also submitted an environmental research article discussing how military dogs sent to Okinawa from the Republic of Vietnam were about twice as likely to have cancer of the testicles compared to military dogs who served only in the U.S. and how the dog handlers may also have been affected by the same exposures. Based on this probative evidence, the Board concedes that the Veteran was at least as likely as not directly exposed to herbicide agents through his veterinary duties. The medical evidence clearly establishes that the Veteran's NHL manifested to at least a compensable degree before his death, with manifestations including multiple hospitalizations, operations, radiation and chemotherapy treatments, stem cell transplant, and several associated conditions (including peripheral neuropathy, accelerated atherosclerosis that culminated in amputation of the left lower extremity just below the hip, poor vision, myelodysplastic syndrome, and gangrene of the right leg) that limited his ability to walk, left him essentially bedridden, and made him completely dependent on others for activities of daily living. See November 2002 private opinion by Dr. MWM; September 2008 private opinion by Dr. TAB; September 2008 private opinion by Dr. WML; October 2019 Statement by Dr. WML; December 2021 VA examination. Thus, the Board grants the claim on a presumptive basis, resolving it in full. 2. Entitlement to service connection for diabetes mellitus type II for accrued benefits purposes As discussed above, the Board concedes that the Veteran was at least as likely as not directly exposed to herbicide agents through his veterinary duties. Additionally, the medical evidence clearly establishes that the Veteran's diabetes mellitus type II manifested to at least a compensable degree before his death, with manifestations including restricted diet and use of an oral hypoglycemic agent (Glucotrol XL). See February 2003 VA examination. Thus, the Board grants the claim on a presumptive basis, resolving it in full. 3. Entitlement to service connection for peripheral neuropathy for accrued benefits purposes Secondary service connection may be warranted for a current disability that is either proximately caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). A "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). Ward v. Wilkie, 31 Vet. App. 233 (2019). The medical evidence clearly establishes that the Veteran's peripheral neuropathy is secondary to his NHL (peroneal neuropathy with complete foot drop resulted from tumor invasion of the posterior tibial nerve of the left leg and associated treatment). See February 2003 VA examination; March 2007 Social Security Administration (SSA) medical records; September 2008 private opinion by Dr. TAB; September 2008 private opinion by Dr. WML; October 2019 Statement by Dr. WML. Thus, the Board grants the claim on a secondary basis, resolving it in full. 4. Entitlement to service connection for the Veteran's cause of death for accrued benefits purposes For service connection to be granted for the Veteran's cause of death, the probative evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death, such that either: (1) a cause of the Veteran's death is or should be service connected; or (2) a service-connected disability caused the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran's April 2007 Death Certificate documented that the Veteran died in March 2007 by suicide. The September 2008 private opinion by Dr. TAB, the September 2008 private opinion by Dr. WML, and the October 2019 Statement by Dr. WML explain the severity of functional loss and ongoing complications due to the Veteran's NHL and associated conditions. Additionally, these providers explained how the Veteran experienced extreme exacerbation by these ongoing symptoms and complications, his continuing decline, and his increasing reliance (which he considered to be a burden) on his family; ultimately, these providers opined that the Veteran likely committed suicide to relive the mental and physical anguish due to his NHL and associated conditions. Given the service connection grant for NHL herein, the Board finds that service connection for the Veteran's cause of death is also warranted because this now service-connected disability caused the Veteran's death. Thus, the Board grants the claim, resolving it in full. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.