Citation Nr: 18123963
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-24 986
DATE:	August 7, 2018
REMANDED
Entitlement to service connection for cause of the Veteran’s death is remanded.
REASONS FOR REMAND
The Veteran served on active duty from September 1966 to April 1994.
The Veteran died in October 2013 due to acute myelogenous leukemia and the appellant is the Veteran’s surviving spouse.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).
The appellant contends that the Veteran’s acute myelogenous leukemia was related to his exposure to herbicides during his service in Korea.  See July 2015 Appeal to Board.  The appellant also contends there is a connection between the effects of benzene (dioxin was used in herbicide agents) and leukemic disease, as well as a potential relationship between the Veteran’s acute myelogenous leukemia and other service-connected disabilities, including tuberculosis, hepatitis, and hypertension.  Additionally, the appellant contends that that she has not received all of the Veteran’s service treatment records. 
The laws and regulations pertaining to herbicide exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309(e), and who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ.  38 C.F.R. § 3.307(a)(6)(iv).  A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a)(6)(iv).  However, acute myelogenous leukemia is not listed in 38 C.F.R. § 3.309(e).
Although acute myelogenous leukemia has not been shown to warrant a regulatory presumption of service connection as a result of in-service herbicide agent exposure, it must still be determined whether service connection can be established on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation).  
VA has established a procedure for verifying reported herbicide exposure in areas outside of the Republic of Vietnam, including the Korean DMZ.  See generally VBA Manual M21-1, IV.ii.1.H.4.a-b. (last accessed August 2, 2018).  The Veteran had service in Korea during the 	qualifying time period between April 1, 1968, and August 31, 1971, but the unit he was assigned to (the 1st Battalion, 17th artillery) is not present on the list of military entities identified as operating in the Korean DMQ during the qualifying time period.  VBA Manual M21-1, IV.ii.1.H.4.b. (last accessed August 2, 2018). 


Where there is claimed exposure to herbicides in Korea during the qualifying time period, but no indication that the Veteran served in one of the military units identified by the Department of Defense as having operated in the Korean DMZ during such period, the Agency of Original Jurisdiction (AOJ) should send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for the Veteran’s specific dates of service in Korea, locations of service, and verification of exposure to herbicides.  See VBA Manual M21-1, IV.ii.1.H.4.b-c. (last accessed August 2, 2018).
The appellant contends the Veteran’s acute myelogenous leukemia is etiologically related to service and no medical opinion is present in the record regarding the etiology of the Veteran’s acute myelogenous leukemia.  Accordingly, on remand, the AOJ should obtain a medical opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran’s acute myelogenous leukemia.
The matter is REMANDED for the following action:
1. The AOJ should undertake appropriate development to obtain all outstanding military and treatment records pertinent to the Veteran’s claim. 
2. The claim should be referred to the JSRRC coordinator or appropriate agency to make a formal finding as to whether there exists sufficient evidence to verify the Veteran’s exposure to herbicides during his service in Korea. 
If sufficient information is not provided to make such a request, or if attempts to verify the relevant information are not successful, the appellant must be notified of this fact.  All verification efforts must be documented and associated with the evidentiary record.
3. After any records obtained have been associated with the evidentiary record, the AOJ should obtain a medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s acute myelogenous leukemia.
The examiner is asked to offer the following opinion:
Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acute myelogenous leukemia was either incurred in, caused by, or is otherwise etiologically related to, the Veteran’s active duty service?
In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions.  The examiner should explain the medical basis for the conclusions reached. 
The examiner should address the appellant’s contention regarding the connection between the effects of benzene and leukemic disease, as well as the relationship between the Veteran’s service-connected disabilities, including tuberculosis, hepatitis, and hypertension, and his acute myelogenous leukemia.
 
4. After the above development has been completed, readjudicate the claim.  If the benefit sought remains denied, provide the appellant and her representative with a supplemental statement of the case, and return the case to the Board.
  
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Keogh, Associate Counsel

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