Citation Nr: 24010686 Decision Date: 03/06/24 Archive Date: 03/06/24 DOCKET NO. 15-03 047 DATE: March 6, 2024 REMANDED 1. Entitlement to service connection for acute myelogenous leukemia (AML) is remanded. 2. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Appellant is the surviving spouse of a Veteran who served on active duty from October 1946 to February 1948 as an enlisted infantryman and personnel technician, and from July 1952 to November 1973 as a commissioned officer, retiring at the rank of lieutenant colonel. The Veteran died in September 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in January 2016, April 2018, m,9 2019, May 2020, and September 2020, when it was determined that remand was necessary to ensure that VA full filled its duty to assist the Appellant. In October 2022, the Board issued a decision which denied the issues on appeal. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). The CAVC granted a Joint Motion for Remand (JMR), vacating the Board's October 2022 decision and remanding the claims for further development. This matter accordingly has been returned to the Board for readjudication and will be remanded for further development consistent with the JMR. 1. Entitlement to service connection for acute myelogenous leukemia (AML) is remanded. The Appellant claims that the Veteran's acute myelogenous leukemia was the result of his service, to include exposure to herbicides. In the JMR granted by the Court, discussed above, the parties agreed that the Board erred when it relied on an inadequate March 2022 VA medical opinion. Specifically, the parties concluded that the March 2022 VA examiner, in providing a rationale, failed to use the correct standard for service connection claims, which, in this case, is whether the Veteran's Agent Orange exposure is "at least as likely as not" contributory to his AML, as opposed to whether Agent Orange exposure can be confirmed as contributory to the Veteran's AML, or death due to AML. The Board regrets the delay. However, based on a review of the evidence of record, and in light of the JMR, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional evidentiary development, to include obtaining an adequate examination to determine whether the Veteran's Agent Orange exposure is at least as likely as not contributory to his AML diagnosis. Additionally, the Appellant, without Appellees opposition, submits that while the March 2022 VA opinion addresses, albeit inadequately, the link between Agent Orange and AML, it fails to address whether there is any relationship between the Veteran's myelodysplastic syndrome (MDS), which has been potentially linked to even chronic low levels of benzene exposure, and Agent Orange exposure in Vietnam. Thus, remand is warranted for an opinion on whether the Veteran's MDS is at least as likely as not due to conceded Agent Orange exposure, and whether such diagnosis indicates at least low levels of benzene exposure due to conceded Agent Orange exposure. Lastly, the Appellant submits that VA, under its duty to assist, should attempt to obtain records to verify the amount of benzene the Veteran was exposed to during his period of active service in Vietnam. Accordingly, upon remand, attempts should be made to determine the extent of benzene exposure the Veteran may have had. 2. Entitlement to service connection for the cause of the Veteran's death is remanded. The Appellant asserts that service connection for the cause of the Veteran's death is warranted. She contends that the Veteran's cause of death is due to exposure to herbicide agents during his service in Vietnam. The parties to the JMR agree that the claim of entitlement to service connection for the cause of the Veteran's death needs to be remanded as it is inextricably intertwined with the claim of entitlement to service connection for AML that is being remanded herein. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Attempt to obtain records, to include a diagnostic report, from appropriate sources, indicating the levels of benzene exposure the Veteran likely experienced during his period of active service in Vietnam. 2. Obtain a posthumous opinion from an oncologist or other clinician with experience or expertise in the area of occupational exposures and cancer risks regarding whether the Veteran's AML is at least as likely as not related to an in-service exposure of Agent Orange. 3. Obtain a posthumous opinion from an oncologist or other clinician with experience or expertise in the area of occupational exposures and cancer risks regarding whether the Veteran's MDS is at least as likely as not related to an in-service exposure of Agent Orange. The examiner must address the Appellant's contention that MDS has been potentially linked to even chronic low levels of benzene exposure. 4. Obtain a posthumous opinion from an oncologist or other clinician with experience or expertise in the area of occupational exposures and cancer risks regarding whether the Veteran's MDS indicates at least low levels of benzene exposure due to conceded Agent Orange exposure. The reviewing clinician must provide information regarding his or her specialty/expertise in the matter at hand. The reviewing clinician should discuss relevant medical literature on the topic of exposure to Agent Orange, including any guidelines or risk factors published by the Department of Defense or the Department of Labor's Occupational Safety and Health Administration (OSHA). Of note, an opinion based on review of the Veteran's medical history, consideration of lay statements, and an explanation for the rationale that contains clear conclusions and supporting data will be deemed adequate for adjudication. 5. Thereafter, the AOJ must readjudicate the Appellant's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Appellant and her private attorney representative with a copy of the readjudication and afford them an appropriate period to respond. Scott W. Dale Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.