Citation Nr: 18132348
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-14 305A
DATE:	September 6, 2018
ORDER
Entitlement to service connection for the cause of death is granted.
FINDINGS OF FACT
1. The Veteran served in the Republic of Vietnam. 
2. The Veteran’s acute myelogenous leukemia (AML) is due to the Veteran’s presumptive exposure to herbicide agents during his service in the Republic of Vietnam.  
3. AML contributed to cause the Veteran’s death
CONCLUSION OF LAW
The criteria for service connection for the cause of the Veteran’s death have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1961 to August 1991 to include service within the Republic of Vietnam.  The Veteran died in August 2010.  The appellant is his surviving spouse.  
In June 2018 the Board received a waiver of agency of original jurisdiction review of evidence added to the claims folder since the September 2016 supplemental statement of the case.  See 38 C.F.R. § 20.1304(c).  
The Cause of Death Claim
The appellant contends that the Veteran’s exposure to herbicides during service caused the AML that contributed to his death. 
To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability which was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. 
In this regard, it can be either the immediate or underlying cause, or else be etiologically related.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been one of the immediate or underlying causes of death, or be etiologically related to the cause of death.  38 C.F.R. § 3.312(b).  A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death.  Significantly, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c)(1).
Service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause.  38 C.F.R. § 3.312(c)(3).  In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  
Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
With the above criteria in mind, the record shows the Veteran passed away in August 2010.  At the time of the Veteran’s death, he had not been granted service connection for any condition or disability related to service.  On the August 2010 Certificate of Death, the certifying physician stated that the contributing causes of death were septic shock, neutropenia, and acute myelogenous leukemia (AML). 
As an initial matter, the Veteran was not service connected for any disabilities at the time of his death.  As such, the only aspects of the appellant’s claim for consideration is as follows-whether the causes of the Veteran’s death (i.e., the septic shock, neutropenia, and AML indicated in his death certificate) should have been service-connected during his life-time.
In this regard, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  
In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period.  38 C.F.R. § 3.307.  For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309.  
For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975.  38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).
The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
As to establishing service connection for AML based on proof of direct causation (see Stefl, supra), the record shows the Veteran being diagnosed with AML.  See, e.g., Certificate of Death dated in August 2010.  As to an in-service injury, given the Veteran’s documented service in the Republic of Vietnam during the Vietnam War era it is presumed that he had herbicide exposure even though AML is not a disease processes found at 38 C.F.R. § 3.309(e).  See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309.  Therefore, the last question before the Board is whether the Veteran’s AML was caused by his presumptive herbicide exposure due to his Vietnam service.
In this regard, after a review of the record on appeal and controlling medical literature the September 2016 VA examiner opined that the Veteran’s AML was not due to his herbicide exposure in the Republic of Vietnam and in June 2018 Steven D. Gore, M.D., a Professor of Medicine at the Yale School of Medicine and a specialist in AML, opined that the Veteran’s AML was due to his herbicide exposure in the Republic of Vietnam.  
Given these equally persuasive medical opinions, the Board finds that the evidence, both positive and negative, as to whether the Veteran’s AML was caused by his presumptive herbicide exposure in the Republic of Vietnam is at least in equipoise.  Under such circumstances, and granting the appellant the benefit of any doubt in this matter, the Board concludes that AML was caused by the Veteran’s presumptive herbicide exposure in the Republic of Vietnam and service connection is warranted.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra.
As to the remaining cause of death question (i.e., did a service-connected disability service-connected disability contributed substantially or materially to cause the Veteran’s death), the Board once again notes that August 2010 Certificate of Death lists as a contributing cause of the Veteran death AML.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Therefore, the Board finds that the most probative evidence of record shows that a disease process that should have been service-connected during the Veteran’s lifetime contributed substantially or 

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materially to his death.  38 U.S.C. § 1310; 38 C.F.R. § 3.312.  Accordingly, the Board finds that service connection is warranted for the cause of the Veteran’s death and the appeal is granted. 
 
NEIL T. WERNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Kerpan, Associate Counsel 

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