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Denial of service connection for cause of death resulted from failure to consider exposure to herbicides

Denial of service connection for cause of death resulted from failure to consider exposure to herbicides

Summary

The Veteran served on active duty from November 1965 to February 1969, including service in the Republic of Vietnam.  His military occupational specialty was jet engine mechanic and he is presumed to have been exposed to benzene and other chemical solvents during service.  In July 2002, the Veteran was diagnosed with acute myeloid leukemia (AML).  He died in March 2003 after having a stroke caused by his AML. In June 2004, the regional office denied the Veteran’s widow’s claims for service connection for the cause of the Veteran’s death and for accrued benefits.

 

Board denied service connection for the Veteran’s cause of death

In July 2007 and January 2010, the Board of Veterans’ Appeals remanded the widow’s claim to the regional office for additional development.  Also in January 2010, the VA obtained a medical opinion in which a medical professional opined that it was less likely than not that the Veteran’s AML was related to one of the B-cell lymphocytic leukemias that are considered presumptively service connected as due to herbicide exposure.  In November 2011, the Board denied service connection for AML as due to herbicide or radiation exposure for the purpose of accrued benefits.  The Board then remanded the claim for service connection for cause of death as due to AML primarily based on exposure to chemical solvents, to include benzene.  In December 2015, a VA opinion stated that it was “impossible to determine if [the Veteran’s] AML resulting in the Veteran’s death was etiologically related to his period of active service, to particularly include in-service exposure to benzene, or other such chemicals.”  In July 2016, an expert opined that the lapse of time between benzene exposure and development of AML suggested a lack of causal correlation between exposure and AML.

 

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the denial of service connection for the Veteran’s cause of death.  In its decision, the Board conceded exposure to benzene and other chemical solvents, but relied on the July 2016 specialist’s negative nexus opinion to deny the claim.

 

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board impermissibly narrowed the scope of the claim when it did not consider whether the widow was entitled to service connection for the Veteran’s cause of death as due to herbicide exposure, which was reasonably raised by the record.  The Court determined that the Board was wrong to rely on its prior denial of service connection for accrued benefits purposes, including as due to herbicide exposure, and to deny service connection for the Veteran’s cause of death on the basis of herbicide exposure.  Accordingly, the Court vacated the Board’s decision and remanded the matter for further adjudication consistent with the Court’s decision.  On remand, the Board must determine whether an additional medical opinion is necessary regarding a relationship between herbicide exposure and AML.

Read the Court’s full decision here. 

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