Citation Nr: 0634583 Decision Date: 11/08/06 Archive Date: 11/27/06 DOCKET NO. 05-26 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from November 1969 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. FINDINGS OF FACT 1. The veteran died on July [redacted], 2002. 2. According to the Certificate of Death, the immediate cause of the veteran's death was acute lymphoblastic leukemia. 3. At the time of death, service connection had not been established for any disability. 4. With the resolution of reasonable doubt in the appellant's favor, the veteran's fatal acute lymphoblastic leukemia had its origin as the result of exposure to various toxic contaminants during his period of active military service. CONCLUSION OF LAW Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), [codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist an appellant in the development of her claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). The notice requirements of the VCAA require VA to notify an appellant of any evidence that is necessary to substantiate her claim, as well as the evidence VA will attempt to obtain, and which evidence she is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In the present case, in correspondence of June 2004, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate her claim for service connection for the cause of the veteran's death, as well as what information and evidence should be submitted by her, what information and evidence would be obtained by VA, and the need for the appellant to advise VA of or submit any further evidence in her possession pertaining to her claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file includes VA and private treatment records, private reports of hospitalization, various opinions of certain medical experts, and the transcript of a hearing before the undersigned Veterans Law Judge in January 2006. As discussed above, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of events in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events or content of the notice is not shown to have had any effect on the case, or to have caused injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis In reaching this determination, the Board wishes to make it clear that it has reviewed all the evidence in the veteran's claims file, which includes: the appellant's multiple contentions, including those raised at a January 2006 hearing; VA and private medical records; various treatises and articles concerning volatile organic compounds; and statements from both VA and private specialists. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the appellant's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant (the widow of the veteran) seeks service connection for the cause of the veteran's death. In pertinent part, it is argued that the veteran's fatal acute lymphoblastic (lymphocytic) leukemia was the result of exposure to various toxic contaminants during his period active military service. In that regard, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Moreover, where a veteran served ninety (90) days or more during a period of war, and carcinoma (including acute lymphoblastic leukemia, or cancer of the blood) becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). Finally, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (2005). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2005). There are primary causes of death which, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service connection condition was of such severity as to have had a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ, and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2005). In the present case, service medical records, including a service separation examination of November 1971, are negative for history, complaints, or abnormal findings indicative of the presence of leukemia. In point of fact, the earliest clinical indication of the presence of the veteran's fatal leukemia is revealed by private medical records dated in May 2001, almost 30 years following the veteran's discharge from service. Nonetheless, based on the evidence of record, it would appear that the veteran was, in fact, exposed to certain toxic volatile organic compounds, including tetrachloroethylene (also called perchloroethylene) and trichloroethylene, during his period of service at Camp Lejeune, North Carolina, in 1970. In that regard, in May 2002, the VA's Chief Public Health and Environmental Hazards Officer indicated that, based on a review of the records by a VA toxicologist, she was unable to state that the veteran's exposure to chloroethylene compounds in the drinking water at Camp Lejeune was "likely" or "as least as likely" responsible for his fatal acute lymphocytic leukemia. However, the veteran's private oncologist, in correspondence of February 2002, noted that the association between toxic exposures and acute leukemia was "well described in the medical literature." That same physician, in subsequent correspondence of February 2004, offered his opinion that it was "possible, and even likely" that the veteran's fatal leukemia was linked to his "numerous exposures" to the aforementioned toxic compounds. Significantly, as recently as December 2005, the veteran's private oncologist offered his opinion that it was "not simply possible, but highly likely that (the veteran's) poor risk leukemia (was) linked to...repeated toxic exposures." The Board observes that, in correspondence of January 2006, the aforementioned private oncologist wrote that he had now had the opportunity to review in detail the veteran's files provided by the Department of Veterans Affairs. Also reviewed were several sources of data describing the water contamination at Camp Lejeune, North Carolina, including the impact of exposure to various chemicals on the families stationed at that facility. Significantly, such documentation was to the effect that the veteran was, in fact, stationed at Camp Lejeune during the period when the water in question was contaminated. According to the veteran's oncologist, the contaminated drinking water at Camp Lejeune had directly caused numerous medical problems for the many families exposed to it during their stay at the installation. In his opinion, the veteran was one of those victims, and it was "likely" that his poor-risk leukemia resulted from these toxic exposures. Based on the aforementioned, and with the resolution of all reasonable doubt in the appellant's favor, the Board is of the opinion that the veteran's fatal acute lymphoblastic leukemia as likely as not had its origin as the result of exposure to certain toxic volatile organic compounds during his period of service at Camp Lejeune, North Carolina. Accordingly, service connection for the cause of the veteran's death is in order. ORDER Service connection for the cause of the veteran's death is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs