UNDIAGNOSED ILLNESSES

Summary

The Veteran served with multiple periods of service, including from July 1969 to June 1971, December 1973 to December 1977, and May 1980 to June 1994. The Veteran passed away in December 2019. This case comes before the Board of Veterans' Appeals following the RO's denial of survivor benefits, specifically Dependency and Indemnity Compensation (DIC), based on the Veteran's death. The appellant, the surviving spouse, seeks DIC. The primary issue is whether the Veteran's death from chronic myelogenous leukemia (CML) was service-connected. The Board reviewed the Veteran's service records, which confirmed service in the Southwest Asia theater of operations from July 1992 to June 1993. The Board noted the Veteran's death certificate listed myeloid leukemia as the sole and immediate cause of death. Applying the PACT Act provisions, specifically 38 C.F.R. § 3.320b, the Board found service connection for the Veteran's myeloid leukemia warranted due to the Southwest Asia service. The Board considered the appellant's lay assertions regarding herbicide exposure and respiratory issues contributing to death but found the death certificate's clear indication of myeloid leukemia as the principal cause dispositive. The Board granted service connection for the cause of death and awarded DIC.

Rationale

Death certificate lists myeloid leukemia as sole and immediate cause of death.; Veteran had active service in Southwest Asia theater of operations (July 1992-June 1993).; Chronic myelogenous leukemia is service-connected under 38 C.F.R. § 3.320b for Southwest Asia service.

Full Decision Text

Citation Nr: A26038927
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 210504-512885
DATE: April 27, 2026

ORDER

Entitlement to service connection for the cause of the Veteran's death is granted.

FINDING OF FACT

The Veteran died in December 2019, after active service in Saudia Arabia from July 1992 and June 1993; and, the primary cause of death was a chronic myelogenous leukemia.

CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.5, 3.312, 3.320b.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from July 1969 to June 1971, December 1973 to December 1977, and May 1980 to June 1994. The Veteran died in December 2019. The appellant is the surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) from a January 28, 2021, decision by a Department of Veterans Affairs (VA) Regional Office (RO/AOJ). The appellant appealed by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) on May 4, 2021. The appellant elected the Hearing docket.

The appellant withdrew the hearing request on May 19, 2025. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted by the appellant or representative within 90 days following withdrawal of the hearing request. 38 C.F.R. §§ 20.302(b), 20.704(e). If evidence was submitted (1) during the period after the January 28, 2021, decision and prior to withdrawal of the hearing request on May 19, 2025, or (2) more than 90 days following the withdrawal (i.e., August 17, 2025), the Board did not consider it. 38 C.F.R. §§ 20.202(c)(1), 20.300, 20.302(a), 20.801.

If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes that the May 2021 NOD identified the January 2021 decision adjudicating the Appellant's January 2021 claim survivor's benefits, for dependency and indemnity compensation (DIC) and survivor's pension; the latter was subject to a separate April 2026 Board decision issued under this same docket number. 

Entitlement to Service Connection for the Cause of the Veteran's Death

The appellant seeks DIC.

Pursuant to 38 U.S.C. § 1310, DIC is paid to a surviving spouse, child, or parent of a qualifying Veteran who died from a service-connected disability. See Dyment v. West, 13 Vet. App. 141, 144 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A Veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three element test for service connection requires evidence of: (1) a current disability; (2) in-service inc
 underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

In addition, effective January 10, 2025, service connection shall be granted for acute leukemias; chronic leukemias; multiple myelomas, including monoclonal gammopathy of undetermined significance; myelodysplastic syndromes; and myelofibrosis, if a Veteran had active service in or above Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, or Somalia on or after August 2, 1990, or, Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Yemen, or Uzbekistan on or after September 11, 2001. These diseases shall not be service connected if there is affirmative evidence that the Veteran was not exposed to toxic substances, chemicals, and airborne hazards, including fine particulate matter, during such service; that the disease was not incurred in or aggravated by such service; of a supervening event or condition after separation from the most recent period of active service; or that the disease resulted from the Veteran's own willful misconduct. See 90 Fed. Reg. 1,894, 1898 (Interim Final Rule) (Jan. 10, 2025); 38 C.F.R. § 320b.

In making all determinations, the Boad must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).

In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail.  See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding that the Board must only discuss the evidence which is relevant to the issues on appeal).  A Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Evidence is in approximate balance when the evidence in favor of and opposing the Veteran's claim is found to be almost exactly or nearly equal.  Lynch v. McDonough, 21 F.4th 776, 780 (Fed. Cir. 2021).

The Veteran died in December 2019. His death certificate lists the immediate cause of death as myeloid leukemia. The death certificate lists no diseases other than myeloid leukemia and no other cause, to include contributing. At the time of his death, the Veteran was not service connected for myeloid leukemia.

The AOJ denied the appellant's January 2021 claim on the basis that the Veteran's death was not related to his military service. A review of medical records shows that the Veteran's myeloid leukemia was diagnosed as a chronic myelogenous leukemia (CML).  Accordingly, to the American Society, chronic myeloid or myelocytic or myelogenous leukemia is a chronic leukemia of the myelogenous type. https://www.cancer.org/cancer/types/chronic-myeloid-leukemia/about/what-is-cml.html; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1014 (33rd ed. 2020).

As the Veteran had active service between July 1992 and June 1993 in the Southwest Asia theater of operations, service connection is warranted for the Veteran's myeloid leukemia, a chronic myelogenous leukemia, pursuant to 38 C.F.R. § 3.320b
ogenous leukemia (CML).  Accordingly, to the American Society, chronic myeloid or myelocytic or myelogenous leukemia is a chronic leukemia of the myelogenous type. https://www.cancer.org/cancer/types/chronic-myeloid-leukemia/about/what-is-cml.html; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1014 (33rd ed. 2020).

As the Veteran had active service between July 1992 and June 1993 in the Southwest Asia theater of operations, service connection is warranted for the Veteran's myeloid leukemia, a chronic myelogenous leukemia, pursuant to 38 C.F.R. § 3.320b. Accordingly, the appellant is entitled to DIC on the basis that the Veteran's myeloid leukemia was the immediate cause of his death. 38 C.F.R. § 3.312(b).

Consideration was given to the appellant's lay assertions. These included that myelocytic leukemias are associated with exposure to certain herbicide agents. These also included that, because March 12, 2018 VA medical records noted a concern that leukemia treatment could be related to respiratory failure in March 2018, a respiratory disorder contributed to the Veteran's death in December 2019. Other medical records including dated in April 2018 note a similar possibility, via differential diagnoses. However, service connection for chronic myelogenous leukemias may not be presumed based on exposure to certain herbicide agents, 38 C.F.R. § 3.309(e), and a contributory cause of death is one inherently not related to the principal cause, 38 C.F.R. § 3.312(b). More importantly, the December 2019 death certificate reflects myeloid leukemia as the only and immediate, i.e., principal, cause of death.

For the reasons and bases above, service connection for chronic myelogenous leukemia as the cause of the Veteran's death is warranted. The appellant's claim for entitlement to DIC is granted.

The Board will allow the AOJ to assign the effective date in the first instance. See Cf., Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"), aff'd sub nom. without opinion Urban v. Nicholson, 128 F.App'x 154 (Fed. Cir. 2005) (unpublished).

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. Dwyer

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.