Citation Nr: 1017816 Decision Date: 05/13/10 Archive Date: 05/26/10 DOCKET NO. 09-39 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of death for the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1966 to October 1970. He died in April 2008. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied entitlement to service connection for the cause of the Veteran's death, among other claims. The appellant testified before the undersigned at a February 2010 RO (Travel Board). A transcript has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The immediate cause of the Veteran's death was respiratory insufficiency, progressive small lymphocytic lymphoma and chronic lymphocytic leukemia (CLL). Other significant conditions which contributed to the Veteran's death included chronic kidney disease, chronic anemia, diabetes, Agent Orange exposure, posttraumatic stress disorder (PTSD), hemiparesis and arthritis aneurysm by history. 2. The Veteran's exposure to chemicals and pollution at El Toro Marine Corps Air Station during service caused his CLL and small lymphocytic lymphoma. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. § 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA is not applicable where further assistance would not aid the appellant in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating her service connection claim for the Veteran's cause of death. DIC is paid to a surviving spouse of a qualifying veteran who died from a service- connected disability. 38 U.S.C.A. § 1310; see Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it 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. In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that the veteran actually stepped foot on land in Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27- 97. For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the foregoing presumptions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Cause of Death Service Connection Claim The appellant contends that the Veteran's death from CLL was caused by his in-service exposure to various chemicals while stationed at El Toro, California. An August 1966 entrance examination and October 1970 discharge examination were negative for any relevant abnormalities. The remaining service treatment records were negative for any complaints, diagnoses or treatment for CLL. Service personnel records indicate that the Veteran's military occupational specialty was Air Freight Operations Man. He was stationed at El Toro Marine Corps Air Station (MCAS) from approximately February 1967 to May 1967 and from July 1969 to October 1970. Post-service treatment records indicate that the Veteran was diagnosed with Stage 0 or perhaps Stage 1 CLL in July 2001. The VA physician noted in July 2001 that this disease was not curable and no therapy was indicated at that time. This condition remained asymptomatic until March 2004, when he developed thrombocytopenia and his CLL was categorized as Stage 4. The Veteran underwent chemotherapy in the fall of 2004 and in the fall of 2007. He was admitted for nursing home care in August 2007. Palliative radiation therapy was performed in the spring of 2008 following the development of a small lymphocytic lymphoma. He expired in April 2008. A July 2004 opinion from Dr. D. K. noted that he had been treating the Veteran for CLL, a form of non-Hodgkin's lymphoma. The physician opined that this cancer was related to the Veteran's exposure to Benzene and to Agent Orange. An April 2008 opinion from Dr. D. K. noted that the Veteran's prognosis was extremely poor and that he was considered terminal. The physician opined that his CLL is most likely than not due to his Agent Orange exposure. A May 2009 VA psychology examiner opined that it was less likely than not that the Veteran's PTSD contributed to his death. The medical literature did not reveal any link between the Veteran's lymphoma and leukemia and PTSD. This examiner had reviewed only the Veteran's VA treatment records prior to rendering this opinion. An October 2009 opinion from Dr. D. R., one of the Veteran's treating VA physicians, noted that he had died from CLL and small cell lymphoma. During service, the Veteran had been stationed at El Toro MCAS in California from August 1968 to April 1971 during which time he worked as an air freight man and drove a truck. He wore a gas mask and protective shoes during this time. El Toro MCAS was closed in 1999 due to soil and ground contamination. Activities at the base "generated harmful waste and pain residues, hydraulic fluids, batteries and other waste into the soil and grounds from several past operations". There were also four landfills located on the base which burned solid waste, oil, paint residues, flammable fluids, jet fluid, industrial solvents, aviation gasoline and other liquids into the air. El Toro MCAS was included on the United States Environmental Protection Agency (EPA) National Priorities list of hazardous waste sites requiring cleanup. The Veteran was noted to have been exposed to air pollution generated from the burnings at the four landfills during his service in the October 2009 opinion. Benzene, alkalating agents, aromatic amines, solvents used in chemicals, plastic, rubber, exposure to petroleum products, paint, agricultural chemicals and chemical exposures were known causes of leukemia. It was more likely than not that the Veteran's leukemia and lymphoma were caused from this in-service chemical exposure at El Toro MCAS during his transport of hazardous materials and his exposure to pollution from landfill burnings. During the February 2010 hearing, the appellant testified that she had known the Veteran during service and that they had married shortly after his discharge. He had worked as a freight man during service and that his duties included washing and decontaminating airplanes. He did not serve in Vietnam. Following service he worked as a medical professional at a VA facility. El Toro MCAS had been placed on the EPA Superfund National Priority List due to organic solvent contamination of the soil and groundwater. United States Environmental Protection Agency National Priority List; www.epa.gov/superfund/sites/npl/where.htm. An appendix to the April 1991 Centers for Disease Control (CDC) Draft Final Investigation and Feasibility Study Work Plan addressing the El Toro MCAS detailed the various sites studied during the agency's public health assessment. One base landfill had been used beginning in the late 1960s and accepted waste including waste oils, hydraulic fluids, paint residues, transformers, solvents, construction debris, batteries and municipal waste. A second base landfill operated during the late 1960s and accepted burnable trash, municipal solid waste, unspecified fuels, oils, solvents, cleaning fluids, scrap metals and paint residues. Burning was performed to reduce waste volume at this landfill. Two other base landfills were operational during time periods other than when the Veteran served at El Toro MCAS. During the 1960s, waste oils were directly applied to the ground for dust control in one area. Agency for Toxic Substances & Disease Registry; Public Health Assessment, El Toro Marine Corps Air Station, Santa Ana, Orange County, California; www.atsdc.cdc.gov/HAC/pha/PHA.asp?dorid=19&pg=1. The Veteran served at El Toro MCAS for more than one year and worked in Air Freight Operations. His death certificate indicated that his causes of death included CLL and small lymphocytic lymphoma. The October 2009 opinion from the Veteran's treating VA physician, the only competent medical opinion of record, establishes a nexus between the Veteran's cause of death and his service. This opinion is buttressed by the April 1991 CDC report which confirmed the burning of hazardous materials at base landfills during the Veteran's service at El Toro MCAS. All of the elements for the grant of service connection for the Veteran's cause of death have been demonstrated. Accordingly entitlement to DIC, on the basis of service connection for the cause of the Veteran's death, is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to DIC on the basis of service connection for the Veteran's cause of death is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs