Citation Nr: 1013211 Decision Date: 04/07/10 Archive Date: 04/14/10 DOCKET NO. 06-33 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Chapter 35 educational assistance benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The Veteran, who was born in 1943, had active U.S. Navy service from November 1962 to November 1966. He died in 1977. This appeal to the Board of Veterans' Appeals (Board) is from action taken by the above Department of Veterans Affairs (VA) Regional Office (RO). The appellant, who is the Veteran's widow, provided testimony before the undersigned Veterans Law Judge at a videoconference hearing in March 2008, and a transcript (Tr.) is of record. In a decision in July 2008, the Board held that new and material evidence had been submitted to reopen the appellant's original 1977 claim (filed at the time of his death) for entitlement to service connection for the cause of the Veteran's death. The Board remanded the case for consideration on the substantive merits, along with the Chapter 35 issue which rested upon resolution of the former. The Board further denied entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318. In October 2009, the Board sent the case to an independent medical expert in the Veterans Health Administration (VHA) for an opinion. That opinion was received in November 2009; the appellant has had the chance to review the opinion and respond; and the case is again before the Board for final appellate review on the evidence now of record. FINDINGS OF FACT 1. Given the aggregate evidence, and with resolution of reasonable doubt in favor of the Veteran's having been exposed to ionizing radiation while in service, the criteria for service connection for his death due to acute myelogenous leukemia (AML) are met. 2. Since the Veteran's death from AML was due to service connected disability, the appellant is entitled to Chapter 35 benefits. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the appellant, the cause of the Veteran's death was related to active military service. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 1310, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303(a)(c), 3.307, 3.309, 3.310, 3.311, 3.312 (2009). 2. The appellant has basic eligibility for Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. 38 U.S.C.A. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). In view of the disposition herein, there is no need for further discussion of notice or development. II. Applicable Legal Criteria Under 38 U.S.C.A. § 1110, a Veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may also be granted on a presumptive basis for certain chronic disabilities when manifested to a compensable degree within the initial post-service year. 38 C.F.R. §§ 3.307, 3.309(a). In order for service connection for the cause of a Veteran's death to be granted, it must be shown that a service- connected disability caused the death, or substantially or materially contributed to cause death. 38 U.S.C.A. § 1310. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. When it is determined that a Veteran's death was service connected, his surviving spouse is generally entitled to dependency and indemnity compensation. 38 U.S.C.A. § 101. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. 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). The debilitating effects of a service- connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). 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-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected disability 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)(3), (4). The law provides that, if a Veteran was exposed to a herbicide agent during active service, presumptive service connection is warranted for a number of disorders: Presumptive service connection for these disorders as a result of Agent Orange or other herbicide exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). Notwithstanding these presumptive provisions, service connection for claimed residuals of exposure to Agent Orange also may be established by showing that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162- 64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. In addition, if a Veteran who was exposed to ionizing radiation during active service later develops one of the diseases a listed in 38 C.F.R. § 3.309(d), a rebuttable presumption of service connection arises under 38 C.F.R. §§ 3.307, 3.309. The diseases listed in 38 C.F.R. 3.309(d) are disorders as to which the Secretary of Veterans Affairs has determined that a positive association with radiation exposure exists. Service connection may also be established if a radiation- exposed Veteran develops a "radiogenic disease" (i.e., one which may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b) or established by competent scientific or medical evidence that the claimed condition is a radiogenic disease), if the VA Undersecretary for Benefits determines that a relationship, in fact, exists between the disease and the Veteran's radiation exposure in service. Direct service connection may also be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, supra; see also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Application of these provisions is dependent upon establishing that the Veteran was exposed to ionizing radiation during active service. A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who, while serving on active duty, or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device, or the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 C.F.R. § 3.309(d)(i), (ii). Certain other specific possible exposure circumstances (e.g., specific nuclear-related operations, etc.) have been delineated, and the appellant has been provided copies of each of them, including in the pertinent Statement of the Case. Diseases presumptively service connected for radiation- exposed Veterans under the provisions of 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gallbladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. If a claimant or decedent does not qualify as a "radiation- exposed Veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the claimant may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffered from a radiogenic disease and exposure to ionizing radiation in service is shown. The term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non- malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). 38 C.F.R. § 3.311 also provides instruction on the development of claims based on exposure to ionizing radiation, and does not refer to any other types of radiation exposure. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumption period specified in either section 3.307 or section 3.309, and where it is contended that the disease is a result of ionizing radiation in service. For the purposes of educational assistance under Chapter 35 of title 38, U.S. Code, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service- connected disability; or (3) a permanent total service- connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. The Board has an obligation to provide adequate reasons and bases supporting this decision, but there is no requirement that every item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. All the evidence of record has been reviewed, and pertinent evidence will be delineated herein. However, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the 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). III. Factual Background and Analysis The initial alternative arguments in this case related to disabilities possibly due to exposure in Vietnam to herbicide agents and/or exposure on shipboard duty to ionizing radiation. It has now been conceded that he was in Vietnam. However, given the aggregate evidence of record, to include recently obtained medical expert opinion evidence, it is not now demonstrated that the Veteran died from a disability which was the probable result of dioxin exposure, to include anything that caused or significantly contributed to his death. More important, it is no longer necessary to discuss that option given the resolution to be addressed herein. After considerable development of the evidence, the Board recently forwarded the case for a medical expert opinion. Because the essential elements of the case were contained in that opinion request, there is no need to further detail the evidence in the file. However, the following includes a summary of the pertinent data provided for the medical expert opinion. At the time of the Veteran's death, according to the limited terminal hospital data now of record, laboratory test results showed that he had a number of significant histological anomalies, including but not limited to the possibility of diabetes mellitus. No additional records appear to be forthcoming. An opinion is of record from a surgical oncologist, K.M., M.D., dated in April 2008. The specialist had reviewed all of the Veteran's records and conducted a review of the peer- reviewed medical literature regarding chemical and radiation induced leukemia. The physician opined, in pertinent part, as follows: [The Veteran] had no other known risk factors for developing acute leukemia, specifically he was not a smoker, had no family history of blood related malignancies, and was not in the normal age range for this diagnosis. (Population based data from the Surveillance Epidemiology and End Results database (SEER) from 2000-2004 reveal that 69.6% of patients diagnosed with acute myelocytic leukemia are over the age of 54, and only 6.3% are diagnosed between the ages of 20 and 34, when [the Veteran] was diagnosed). There are strong links between benzene and radiation exposure and the development of acute myeloid leukemia. (Descantha, et al., Cancer Causes and Control, 2005, 16c 939-953).. In addition, there are also associations between exposure to aromatic hydrocarbons such as xylene and toluene, and certain herbicides with hematologic malignancies. (Ibid). Furthermore, a meta-analysis has suggested that occupational exposure to electromagnetic fields may be associated with acute myelocytic leukemia. (Kheifets, et al, J Occup Environ Med, 1997, 39: 1074-10-91). Finally, there are reports of increased death from hematological malignancies among nuclear workers (see: Ritz et al, Am J Ind Med, 1999, 35: 21-31 for an example). [The Veteran's] records indicate service in the Navy from 11/20/1962 to 11/12/1968 where he was a gunner's mate on a ship deployed to Vietnam. He had shore leave while in Vietnam waters according to . . . letters and records from him. It is not clear whether he was on a nuclear vessel or not due to matters of national security and [the appellant did] report communications in which he said he was unable to [relate] what type of work he was engaged in or the type of ship he was on. Based on this military history and his lack of any known risk factor for acute myelocytic leukemia, I believe it is reasonable to suspect that he was exposed to radiation or chemicals linked to leukemia while serving in the Navy during the Vietnam era. While no one will ever know for sure what lead to his disease, the only potential risk factor I can see is his history in his service in the Navy during this time period. (Emphasis added.) As noted in the Board's opinion request, the Veteran's exposure to ionizing radiation is not independently, affirmatively confirmed, but the presence of a blank DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, which has no specific entries recorded thereon, raises a substantial question in that regard. There is no clarification by the service department as to when or how he which might have experienced such radiological exposure. Moreover, after further development, it does not appear that this confirmation is forthcoming. And, while there has been certification by the service department of his assignment to two specific ships (done in the context of his potential exposure to Agent Orange, dated June 2009), these periods and ships do not account for his entire time in the Navy, and as clarified below, the information for one of those ships which was certified as participating in stated special operations is not complete. In that regard, and from the outset, the Board is mindful that, in a case such as this, where pertinent official service records may no longer be available, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Moreover, it should be noted that not only can direct service connection be granted for exposure to certain radioactive materials (for which particulars are cited in 38 C.F.R. § 3.309(d)(1)), but that special presumptive provisions are now available with regard to specific ships during given times in certain theaters during, e.g., performance of atmospheric nuclear tests, in certain shipyards after stated operations, etc., including OPERATION DOMINIC II - PLOWSHARE, which included a brief time when the Veteran was in fact in service in the Navy. At the hearing, it was also contended that the Veteran's job in-service as a gunner's mate subjected him to exposure to chemicals and hazardous materials. Tr. at 6-7. It was not known whether his ships had carried, exposed to and/or been powered by nuclear energy or waste, but that he was in constant contact, even to the point of sleeping in a bunk physically proximate to the guns he manned. Tr. at 7. On inquiry, the appellant stated that after service the Veteran was never in contact with such hazardous and caustic materials, but worked as a data processor with computers. Tr. at 8. She testified that there was no history of any cancer or other such disabilities affecting others in his family. Tr. at 11. This has been confirmed in one expert's opinion. The Veteran's death certificate shows that his death on September [redacted], 1977, was due to intracranial hemorrhage of a few hours' duration, due to acute progranulocytic leukemia which had been diagnosed several days before. Although the summary of his terminal private hospital is of record, an autopsy was not performed. The hospital report reflects that he had been hospitalized after an accident which left a hematoma on his thigh and multiple abrasions on his upper and lower extremities. In addition, he was found to have pancytopenia of unknown etiology (myeloproliferative disorder or aplasic anemia were thought be likely possibilities); sepsis secondary to leucopenia; possible diabetes mellitus; and hyperbilirubinemia of uncertain etiology. A histological report from a bone marrow specimen taken three days prior to his death diagnosed "progranulocytic leukemia (this is a subvariant of acute myelocytic leukemia)." Opinions from a VA oncologist prior to the concession of the Veteran's presumed exposure to Agent Orange were noncommittal with regard to other possible associations with toxic substances and/or radiation. In pertinent part, the Board asked the VHA medical expert to review the record and comment as to the following: (a) What disabilities were present at and prior to the Veteran's death and to what extent did they cause, impact, hasten, or otherwise contribute to or hasten his death? (b) When were these disabilities first present and to what were they attributable? (c) Is it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any of the above conditions were causally related to any incident, event, or exposure to either herbicide agents or radiation of any kind in service or is such causal relationship or manifestation unlikely (i.e., less than a 50-50 probability). (d) Was his diagnosed leukemia a subvariant of one of those disabilities cited above in the presumptive law with regard to Agent Orange exposure? (e) If the Veteran had diabetes mellitus, did it contribute in any way to his death? The reviewer was also asked to address any other possible causes of the disabilities or other relevant factors. The medical expert responded that at the time of terminal hospital admission the Veteran had been complaining of fatigue for about one month, which was likely due to the presence of acute myelogenous leukemia. The patient clearly had AML at the time of his admission to the hospital. It was further noted that acute progranulocytic leukemia is the older terminology for acute promyelocytic leukemia, which is a rare form of AML. In addition, duly noting the problems incumbent upon an affirmative confirmation of ionizing radiation exposure in service (as noted above), the reviewer opined that "There is a WELL documented association exposure to ionizing radiation and AML." (Emphasis added.) On the one hand, this has been an understandably long, tedious, and difficult claim for the appellant, as well as a complex case from the viewpoint of those adjudicating the issues. The remaining issue now appears relatively straightforward. Since the original claim immediately after the Veteran's death in 1977, a great deal has changed including legal presumptions and progressive, contributory scientific data on the origins and other matters relating to hematological cancers. In short, it is a seemingly fair statement that the Veteran's death in 1977 was due to AML, which may well have been due to exposure to ionizing radiation. The sole question then becomes under what circumstances he might have acquired such exposure. As for his time in service, he was in occupational duties aboard ships that may well have contained and otherwise dealt with the pertinent substances. In fact, there have been special presumptive provisions enacted with regard to specific ships during given times in certain theaters during, e.g., performance of atmospheric nuclear tests, in certain shipyards after stated operations, etc., including OPERATION DOMINIC II - PLOWSHARE which included a brief time when the Veteran was in fact in service in the Navy. Documentation of record which was recently made available to VA, in response to the claim as it related to Agent Orange, reflects that he was assigned to the USS BLUE for conducting Special Operations (SPECOPS) in support of the USS INDEPENDENCE and USS MIDWAY off Yankee Station; and on the USS SAINT PAUL, during OPERATIONS DECKHOUSE I, III, and IV, JOHN PAUL JONES, and COLORADO. However, the Agent Orange certifications specifically note that the logs for ships were not of record and, specifically, there was no 1965 command history available for the USS BLUE, which by process of elimination from the other evidence of record, is the most likely of the ships to which we know he was assigned to have been involved in the classified operations herein concerned. There remain other ships to which he may well have been assigned, including in those undocumented periods, the names and responsibilities of which are to date unconfirmed and may remain so. In any event, problems with confirmation of duties, responsibilities, or even the ship(s) to which he was then assigned which have not been forthcoming for whatever reasons, including security classifications, must not be used to the detriment of the appellant. What is certain, however, is that he told his wife at the time of his Vietnam service that he could not tell her more about the identities of the ship(s) on which he served or what they were doing, and this has been a consistent story throughout both from the Veteran and the service department itself. However, the fact that there is a pertinent DD Form 1141 on behalf of the Veteran of record, notwithstanding its unfortunate lack of entries, does in fact, tend to provide strong collateral support to the theory that he was in fact potentially exposed to such radiation. Finally, he died precipitously at a young age, less than 11 years after his separation from the Navy, without any previous knowledge of the illness which took his life, AML, and with his demographic being entirely outside the norm for the disease. Moreover, he was a computer programmer after service, and, as noted by the appellant and medical experts alike, there is no known other risk factor shown after service which might have accounted for the AML. The Board concludes that while the evidence is not unequivocal, it is nonetheless persuasive and, in balance, raises a reasonable doubt which will be resolved in favor of the Veteran's having been exposed in service to ionizing radiation which in turn caused the AML which caused his untimely death. Service connection for the cause of his death is therefore warranted. In addition, since service connection is now in order for the cause of the Veteran's death, eligibility for basic Chapter 35 benefits for his surviving spouse has been established. ORDER Service connection for the cause of the Veteran's death is granted. Entitlement to Chapter 35 educational assistance benefits is granted. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs