Citation Nr: 1140520 Decision Date: 11/01/11 Archive Date: 11/16/11 DOCKET NO. 93-17 771 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean Ravin, Attorney at Law ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from June 1957 to June 1987. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., that denied service connection for the cause of the Veteran's death. In August 1995, the Board remanded the appellant's claim for additional development. By a May 2000 decision, the Board denied service connection for the cause of the Veteran's death. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2001, VA General Counsel filed an unopposed motion for remand with the Court. The Court granted the motion by a May 2001 order and remanded the case to the Board for further action in accordance with the order. In November 2003 and June 2006, the Board remanded the claim for additional development. In a June 2009 decision, the Board denied service connection for the cause of the Veteran's death, finding that the Veteran's chronic lymphocytic leukemia (CLL) did not have its onset during his active military service, did not manifest to a compensable degree within one year of his separation from service, and was not shown to be related to related to service. As part of its decision, the Board found that the competent medical opinion evidence indicating that it was unlikely that the Veteran's CLL was attributable to exposure to ionizing radiation in service had more probative value than the medical opinion evidence that did not differentiate between leukemia in general and CLL specifically. Thereafter, the appellant again filed an appeal to the Court. By way of an April 2011 memorandum decision, the Court set aside the June 2009 decision and remanded the matter for readjudication. Although the Court set aside the entirety of the Board's decision, the Court did not find error in the Board's reasoning for denying service connection based on exposure to ionizing radiation due to a lack of nexus. Rather, the Court agreed with the Secretary that a remand was necessary for the Board to address whether a retrospective medical opinion was necessary to determine whether the Veteran's CLL had manifested to a compensable degree within a year after discharge from service. FINDINGS OF FACT 1. All necessary development has been undertaken and there exists no reasonable possibility that an additional medical opinion would aid in substantiating the claim. 2. The Veteran died in July 1991; the immediate cause of death was chronic lymphocytic leukemia. 3. At the time of the Veteran's death, service connection was not in effect for any disability. 4. The disease process leading to the Veteran's death is not attributable to his active military service, including in-service exposure to ionizing radiation, nor was it manifested to a compensable degree within one year of discharge from service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1310, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The appellant's claim was filed prior to the enactment of the VCAA. Additionally, the RO initially adjudicated the claim prior to the enactment of the VCAA. Although pre-adjudicatory VCAA notice was not possible, the Court has held that, in cases such as this one, the Veteran has the right to subsequent content-complying notice. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Indeed, in the appellant's case, the Court ordered VA to provide adequate VCAA notice when it granted the May 2001 motion that was submitted by VA General Counsel. The motion indicated that proper notice was required in light of the then-recent enactment of the VCAA. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, when the case was in remand status. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. Pursuant to the November 2003 remand, and by way of a January 2005 notice letter, the appellant and her representative were notified of the information and evidence needed to substantiate the appellant's claim of service connection for the cause of the Veteran's death. In order for the benefit to be granted, the appellant was told, among other things, that the evidence must show that that the Veteran died from a service-connected injury or disease. She was also told to submit medical opinion evidence linking any principal or contributory cause of death to the Veteran's military service. Although the notice letter was not provided until after the RO initially adjudicated the appellant's claim, the claim was properly re-adjudicated in November 2008, which followed the January 2005 notice letter. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). While the case was in remand status, the Court issued a decision regarding the general notice requirements for Dependency and Indemnity Compensation (DIC) claims. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Notice for DIC claims is to include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Id. at 352-53. The first two aspects of sufficient DIC notice are not applicable as the Veteran was not service connected for any disability at the time of his death. In regards to the third aspect, the January 2005 notice letter provided sufficient notice to the appellant regarding her DIC claim. In any event, the appellant and her attorney-representative have shown actual knowledge of how to substantiate the claim. The appellant and her representative have submitted statements and legal briefs consisting of contentions of why the claim should be granted. They have contended that the cause of the Veteran's death is attributable to his active military service, and in particular, his in-service exposure to ionizing radiation. Additionally, the representative obtained a private medical opinion in an attempt to demonstrate that relationship. In all, the appellant has been able to fully participate in the prosecution of her claim. Consequently, another remand for further notification of how to substantiate the claim is not necessary. The Board also finds that the January 2005 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the appellant was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and associated with the claim file. In 1997, private treatment records from Kaiser Permanente (including records from W.D., M.D.) and Northern Virginia Doctors Hospital were obtained. Subsequent requests for records from those two facilities were made from 2002 to 2005. Although no records were obtained during that time period, it appears that all of the relevant records from the two facilities were already obtained in 1997. The appellant recognized as much when, in an April 2005 statement, she stated that all of the records from both Kaiser Permanente and Northern Virginia Doctors Hospital had already been obtained. Thus, a remand for further record requests from those two facilities is not necessary. The appellant was also afforded her right to a hearing before the Board. However, she failed to report to the hearing that was scheduled in May 2006. Significantly, the appellant has not otherwise alleged that there is any outstanding medical evidence probative of her claim on appeal that needs to be obtained. Thus, VA has properly assisted the appellant in obtaining any relevant evidence. The Board has considered whether a VA medical opinion was required in connection with the appellant's claim for service connection for the cause of the Veteran's death under the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(a) (West 2002). See Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (Section 5103A(a), and not (d), applies to DIC claims, and requires that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit."). In Wood v. Peake, the United States Court of Appeals for the Federal Circuit held that 38 U.S.C.A. § 5103A(a) "only excuses the VA from making reasonable efforts to provide [a medical opinion], if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim.'" 520 F.3d 1345, 1348 (Fed. Cir. 2008) (citing 38 U.S.C.A. § 5103A(a)(2)). At the outset, the Board notes that in accordance with the developmental procedures of 38 C.F.R. § 3.311, two advisory opinions were obtained from the Under Secretary of Health addressing the relationship between the Veteran's CLL and his exposure to ionizing radiation in service. The Board finds those opinions to be adequately supported by the reasons stated therein and supported by the record. The Board further notes that certain chronic diseases, such as leukemia, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). The appellant alleges that the Veteran exhibited compensable manifestations of CLL within that year. Thus, the Board has also considered the necessity of a medical opinion addressing the issue of whether the Veteran's CLL became manifest to a compensable degree by June 30, 1988. In that regard, the Board notes that leukemia is rated under 38 C.F.R. § 4.117, Diagnostic Code (DC) 7703. The DCs and rating criteria applicable to rating diseases of the hemic and lymphatic system were revised effective October 23, 1995. 60 Fed. Reg. 49225-49228 (Sept. 22, 1995). The version of DC 7703 in effect prior to October 1995, and thus in effect during the one-year period from the date of the Veteran's discharge, provided that leukemia requiring intensive treatment such as periodic irradiation or transfusion was to be rated as 100 percent disabling; otherwise, it was to be rated as pernicious anemia. 38 C.F.R. § 4.117, DC 7703 (1988). The DC applicable to pernicious anemia then provided for a 30 percent rating when pernicious anemia was incipient, with characteristic achlorhydria and changes in blood count. 38 C.F.R. 4.117, DC 7700 (1988). A 60 percent rating was provided for chronic pernicious anemia, following acute attacks with characteristic definite departures from normal blood count, with impairment of health and severe asthenia. Id. A 70 percent rating was provided for chronic pernicious anemia, following acute attacks, severe with characteristic definite departures from normal blood count, with severe impairment of health and severe asthenia. Id. Lastly, a 100 percent rating was provided for acute pernicious anemia, rapidly progressive, without remission, or few or brief remissions. Id. In light of the applicable rating criteria in effect during the one-year period from the date of the Veteran's discharge from service, the Board finds there no reasonable possibility exists that obtaining a retrospective medical opinion to address whether the Veteran's CLL was manifest to a compensable degree by June 30, 1988, would aid in substantiating the appellant's claim. This is so because the Veteran's CLL was not diagnosed or treated until October 1989 and, thus, it cannot be said to have been compensable under the criteria set forth in DC 7703, as that DC clearly requires a showing or intensive treatment for leukemia. 38 C.F.R. § 4.117, DC 7703. Further, as the claims folder does not contain any post-service medical records dated within the one-year presumptive period, nor does the appellant assert that any records are outstanding, the Board finds that any medical opinion on whether the Veteran's leukemia was manifest to a compensable degree within a year of discharge from service under DC 7700 would lack evidentiary support because the 30, 60, and 70 percent ratings then required changes in blood count. Further, a 100 percent rating required a finding of acute pernicious anemia, which by its very meaning requires some amount of medical data and/or testing. See Dorland's Illustrated Medical Dictionary 80 (31st ed. 2007) (defining "pernicious anemia" as "a type of megaloblastic anemia . . . caused by impaired intestinal absorption of vitamin B12 due to lack of availability of intrinsic factor"). As there is no documentation of the Veteran's blood counts, nor any laboratory findings or tests results of record during the relevant time period, the Board concludes that to remand for an opinion would be superfluous because there is no evidence upon which a reviewer could find that the Veteran's CLL was manifest to a compensable degree within a year of discharge from service based on the rating criteria applicable to the claim. In reaching this conclusion, the Board has considered the statements from the appellant and friends of the Veteran regarding their observations of the Veteran experiencing fatigue, weight loss, loss of appetite, and easy bruising during the one-year period after the Veteran's discharge from service. Although the appellant contends that these symptoms were compensable manifestations of the disease, a review of applicable rating criteria clearly shows that they are not. Indeed, the question is not when the Veteran's CLL first manifested; rather, the question is at what point did CLL manifest to a compensable degree. Thus, because the symptoms as reported by the appellant do not support a compensable evaluation under DCs 7700 and 7703, the Board finds that the duty to provide a retrospective medical opinion addressing service connection on a presumptive basis has not been triggered because such an opinion would not aid in substantiating the appellant's claim. See 38 U.S.C.A § 5103A(a); Delarosa and Wood, both supra; cf. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C.A. § 5103A(d)(2)(B) .]"). The Board's finding in this regard would remain unchanged even if the rating criteria in effect after October 23, 1995, were for application. This is so because current DC 7703 provides a single 100 percent disability rating for leukemia, with active disease or during a treatment phase; otherwise rate as anemia (DC 7700) or aplastic anemia (DC 7716), whichever would result in the greater benefit. Under current DC 7700, a specific level of hemoglobin is required for each evaluation, from noncompensable to 100 percent. 38 C.F.R. § 4.117, DC 7700 (2011). Under current DC 7716, a compensable rating (10 percent) requires continuous medication. 38 C.F.R. § 4,117, DC 7716 (2011). Ratings greater than 10 percent require evidence of infections, platelet or red cell transfusions, or bone marrow transplant. As there is no medical evidence of record during the applicable presumption period, there is no evidence upon which a reviewer could base an opinion as to whether the Veteran's leukemia was manifest to a compensable degree during the relevant time period, to include the appellant's lay statements regarding symptoms she observed because those symptoms do not establish specific levels of hemoglobin or indicate that the Veteran was indeed being treated for his leukemia. The Board therefore finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). II. Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2011); 38 C.F.R. § 3.312 (2011). 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 issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). 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 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The Veteran died on July [redacted], 1991. At the time of the Veteran's death, service connection was not in effect for any disability. The appellant contends that the Veteran's death is nevertheless attributable to his active military service and that service connection should be granted for the cause of his death. The death certificate lists chronic lymphocytic leukemia (CLL) as the immediate cause of death. Leukemia is a progressive, malignant disease of the blood-forming organs, characterized by distorted proliferation and development of leukocytes and their precursors in the blood and bone marrow. CLL is leukemia specifically of the lymphocytic type. See Dorland's Illustrated Medical Dictionary 1019-20 (30th ed. 2003). Treatment records leading up to the Veteran's death from Kaiser Permanente and Northern Virginia Doctors Hospital reflect that the Veteran died from CLL and related complications, including pneumonia. The cause of death is not in dispute. The salient question is whether the Veteran's CLL, and ultimately his cause of death, is traceable to his active military service. A review of the Veteran's service treatment records reveals that he was not diagnosed with CLL during his active military service. No less than 30 physical examination reports are of record, including the Veteran's entrance examination, as well as periodic, annual, promotional, and submarine examinations. The numerous examination reports do not indicate that the Veteran developed CLL during his military service. On the medical history section of his May 1987 retirement examination report, the Veteran marked the box "no," regarding whether he had or ever had a tumor, growth, cyst, or cancer. The corresponding physical examination was negative concerning the identification of cancer, including CLL. Thus, the Veteran's service records are devoid of a clinical diagnosis of CLL. In addition to service connection on a direct basis, as discussed above, certain chronic diseases, such as leukemia, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 38 C.F.R. §§ 3.307, 3.309. Thus, service connection may be warranted if there is sufficient evidence that the Veteran's CLL became manifest to a compensable degree by June 30, 1988. The claim file does not contain any post-service medical records dated within the one-year presumptive period. The earliest record is a consultation report from Kaiser Permanente, dated October 24, 1989-over one year after the presumptive period expired. Dr. W.D. indicated that the Veteran was being seen as a result of swelling in the neck and an elevated white blood count. The report indicated that Dr. W.D.'s specialty is in the fields of oncology and hematology. It was noted that the Veteran had been aware of swelling in the neck for approximately one month, although Dr. W.D. sensed that the Veteran may have been aware of the swelling for a longer interval (Dr. W.D. did not estimate how long). The Veteran denied fever, excess night sweats, or weight loss in the previous three months. A decrease in energy was noted in the previous few days. Dr. W.D. provided the first clinical diagnosis of CLL. Thereafter, the records from Kaiser Permanente and Northern Virginia Doctors Hospital reflect regular treatment for CLL until the Veteran's death in July 1991. Prior to the Veteran's death, no medical professional provided an opinion by which CLL was attributed to the Veteran's military service or otherwise commented on the origin of the Veteran's CLL. The appellant acknowledges that the medical evidence does not contain a clinical diagnosis of CLL prior to the diagnosis made by Dr. W.D. in October 1989. Even so, the appellant maintains that the Veteran was experiencing symptoms associated with CLL prior to that time, including during his military service and shortly after his separation from service. The appellant states that she observed the Veteran experience fatigue, weight loss, loss of appetite, and easy bruising. She contends that the CLL had its onset during military service, or within the one-year presumptive period, as evidenced by these symptoms. The appellant believes that the symptoms were compensable manifestations of the disease. The appellant asserts that the Veteran would have been diagnosed with CLL had he merely been tested at an earlier date. In November 1998 statements, friends of the Veteran and appellant, C.M. and V.M., also indicated that they observed the Veteran's fatigue and weight loss. They stated that the Veteran was experiencing those symptoms as early as January 1988. C.M. and V.M. attributed the Veteran's symptoms to early signs of CLL as well. The appellant and friends are competent to report symptoms that the Veteran experienced prior to the clinical diagnosis of CLL to the extent the symptoms are capable of observation by a layperson. See, e.g., Savage v. Gober, 10 Vet. App. 488, 495 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds no reason to doubt the credibility of their observations. However, CLL is not a disease that is capable of being identified by a layperson. Lay evidence can be competent and sufficient to establish a diagnosis in some instances, but CLL is not a medical condition that a layperson is competent to identify. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although, a layperson may be competent to identify a simple condition, for example a broken leg, such is not the case for more complex conditions such as a form of cancer. Id. at 1377 n.4. Consequently, the Board does not find the statements from the appellant and friends to be probative as to whether the Veteran had CLL prior to October 1989, to include during his active military service or to a compensable degree within one year after his military service. Moreover, because there is no indication that the appellant or the Veteran's friends have the appropriate medical training or expertise, they are not competent to provide an opinion on a medical matter-such as the etiology of a disease. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the Board does not find the appellant and friends' opinions to be probative to the extent they attribute the Veteran's post-service diagnosis of CLL to his active military service. Furthermore, as discussed at length above, although the appellant may believe that the Veteran's reported symptoms represented compensable manifestations of CLL within a year after discharge from service, a review of the applicable rating criteria fails to support the appellant's contention because the rating criteria then in effect required intensive treatment under DC 7703 or, at a minimum, changes in blood count under DC 7700. See 38 C.F.R. § 4.117, DC 7700, 7703 (1988). Moreover, as discussed in depth above, in light of the rating criteria and the lack of evidence of record during the applicable time period, the Board has determined that no reasonable possibility exists that a medical opinion addressing whether the Veteran's reported symptoms of fatigue, weight loss, loss of appetite, and easy bruising constituted compensable manifestations of CLL by June 30, 1988, would aid in substantiating the appellant's claim because there is no evidence of record upon which a reviewer could base a probative opinion in light of the rating criteria, as there are no findings regarding the Veteran's blood counts. Even though CLL was diagnosed after discharge from service, service connection may still be warranted, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In October 1991, after the Veteran's death, Dr. W.D. commented on the possible origin of the Veteran's CLL in a case summary. Dr. W.D. noted that, between 1967 and 1984, the Veteran had a military occupational history of duty aboard a nuclear-powered submarine and training related thereto. After summarizing the Veteran's treatment history concerning CLL, Dr. W.D. asserted that there is a strong correlation between radiation exposure and the development of leukemia as documented in the Hiroshima and Nagasaki experience, as well as in a considerable body of literature in recent years. Dr. W.D. gave the opinion that the Veteran's radiation exposure was a likely etiologic factor in developing leukemia which led to his death. The laws and regulations contain additional provisions regarding service connection for diseases specific to radiation-exposed veterans and claims based on exposure to ionizing radiation. In the Veteran's case, service personnel records document that he was exposed to ionizing radiation during his active military service. In fact there is extensive and comprehensive documentation of his radiation exposure. Measurements of dose exposures exist from as early as December 1965 when the Veteran was assigned to the Nuclear Power Training Unit. Subsequently, the Veteran served aboard nuclear-powered submarines, including the U.S.S. Flasher, the U.S.S. Alexander Hamilton, and the U.S.S. Theodore Roosevelt. The Veteran was also aboard several other nuclear-powered submarines in the performance of his duties as late as June 1984. Absent affirmative evidence to the contrary, certain diseases shall be service-connected if they become manifest in a radiation-exposed veteran even if there is no evidence the disease during the period of service. 38 U.S.C.A. § 1112(b); 38 C.F.R. §§ 3.307; 3.309(d)(1). The list of diseases includes the following: 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 gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, 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. 38 C.F.R. § 3.309(d)(2)(i). Thus, assuming that the Veteran is a radiation-exposed veteran, CLL is not among the listed disease. In fact, CLL is specifically excluded as a type of leukemia that is a disease specific to radiation-exposed veterans. Accordingly, service connection for CLL may not be presumed under these provisions. (The Board notes that 38 C.F.R. § 3.309(d) was amended on several occasions during the pendency of the claim. However, the inclusion of leukemia in the list of presumptive diseases with the express exclusion of CLL has been in effect since the appellant filed her claim. See 38 C.F.R. § 3.309(d) (1991).) Although the presumptive service connection provisions regarding diseases specific to radiation-exposed veterans do not apply, the appellant's claim falls within the bounds of the procedural development of 38 C.F.R. § 3.311 (2011). Those provisions apply to claims based on exposure to ionizing radiation. In all claims in which it is established that a radiogenic disease became manifest after service, and it is contended the disease is the result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a). Radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2). Similar to the provisions of 38 C.F.R. § 3.309(d), CLL is explicitly excluded from the list of radiogenic diseases. Nonetheless, if a claim is based on a disease other than one of those listed, VA shall consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(d). Additionally, a claimant is not precluded from proving that a veteran has a disability as a result of in-service exposure to ionizing radiation despite the fact that the claimed disability is not a listed radiogenic disease. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). In the present case, the appellant is contending that CLL is the result of the Veteran's exposure to ionizing radiation in service and Dr. W.D.'s opinion constitutes some competent medical evidence that CLL is potentially a radiogenic disease-at least to the extent to make applicable the provisions of 38 C.F.R. § 3.311. Thus, the developmental procedures for claims based on exposure to ionizing radiation are to be utilized. In order to obtain a dose assessment for the Veteran's exposure to ionizing radiation during military service, the relevant records are to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). A request from the Department of Defense is not in order as that department is only contacted for claims based on participation in atmospheric nuclear weapons tests or participation in the occupation of Hiroshima or Nagasaki, Japan, which is not claimed by the appellant. 38 C.F.R. § 3.311(a)(2)(i-ii). Subsequent to the dose assessment, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the Veteran's CLL resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i). An advisory opinion may be requested from the Under Secretary of Health. 38 C.F.R. § 3.311(c)(1). Factors to be considered in the determination include: the probable dose, the relative sensitivity of the involved tissue, the veteran's gender and pertinent family history, the veteran's age at time of exposure, the time-lapse between exposure and onset of disease, and the extent to which other factors may have contributed to the development of the disease. 38 C.F.R. § 3.311(e). In its August 1995 remand, the Board requested that the claim be developed under the provisions of 38 C.F.R. § 3.311. In January 1998, a dose assessment was obtained from the Department of the Navy's Naval Dosimetry Center of the Navy Environmental Health Center Detachment. The Naval Dosimetry Center determined that the Veteran's occupational exposure to ionizing radiation was a total gamma plus neutron dose of .949 rem. The exposures were whole body exposures. The total skin dose was .128 rem. (On May 8, 2003, the National Research Council (NRC) released a report concerning reconstructed dose estimates provided to VA by the Defense Threat Reduction Agency (DTRA). The NRC study contained findings critical of upper bound radiation doses for atmospheric test participants and Hiroshima/Nagasaki occupation forces prepared by DTRA. It found that radiation doses prepared by DTRA may have underestimated the amount to which some veterans were exposed. In the Veteran's case, his exposure to radiation was not from atmospheric tests or fallout from the atomic bombs. Thus, the NRC's concerns do not apply to this case, particularly because none of the dose estimates of record are from DTRA.) In March 1998, the claim was referred to the Under Secretary of Health for the preparation of an additional dose estimate and a medical opinion. The Chief Public Health and Environmental Hazards Officer, S.H.M., M.D., M.P.H., issued a memorandum dated in April 1998 in response to the referral. Dr. S.H.M. noted the Naval Dosimetry Center's dose assessment of .949 rem of total gamma plus neutron exposure and .128 rem of total skin exposure. It was also noted that the Veteran's personnel records showed a summary of .937 rem. Dr. S.H.M. acknowledged that it was not possible for her office to provide an independent dose estimate. In regards to CLL, Dr. S.H.M. stated that ionizing radiation is not felt to cause CLL. She cited to two publications: the 1990 Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V) and the 1995 second edition of Medical Effects of Ionizing Radiation. Dr. S.H.M. noted that the CIRRPC Science Panel Report Number 6, 1988 provided screening doses for leukemia. However, the values were for leukemia other than CLL. According to Dr. S.H.M., even if the CIRRPC (Committee on Interagency Radiation Research and Policy Coordination) value is used, the Veteran's exposure did not exceed the applicable screening dose of 1.7 rem for leukemia developing within 20 years after last exposure and with initial exposure at age 30. In light of the information, Dr. S.H.M. opined that it is unlikely that the Veteran's CLL can be attributed to exposure to ionizing radiation in service. In April 1998, the Acting Director for Compensation and Pension Service stated that there was no reasonable possibility that the Veteran's CLL was related to exposure to ionizing radiation in service. The Acting Director relied on the opinion from the Under Secretary of Health. In March 2006, the Veteran's representative submitted a medical evaluation, dated in February 2006, from C.N.B., M.D., along with Dr. C.N.B.'s curriculum vitae. In the report, Dr. C.N.B. stated that he reviewed the claims file, including the service medical records, post-service medical records, radiation exposure information, laboratory and imaging reports, other medical opinions, lay and physician statements, and medical literature. Dr. C.N.B. noted that the circumstances of the Veteran's case were well within his area of expertise as a neuro-radiologist. Dr. C.N.B. gave the opinion that it is likely that the Veteran's fatal disease (CLL) was induced by his many years of exposure to low dose ionizing radiation while in the United States Navy. Dr. C.N.B. provided the rationale for his opinion as follows: the Veteran entered service fit for duty; he had multiple years of exposure to radiation while on nuclear submarines; he was exposed to significant amounts of low-dose radiation on a chronic basis according to the radiation logs; literature supports a link between radiation exposure and leukemia; the Veteran died from leukemia; there was an increased risk of induction because the Veteran was exposed to radiation at a young age; the dose response for leukemia is stochastic; leukemia is induced even at very low ionizing doses; the dosimetry calculations were based on inaccurate factual foundation data; film badges from the 1960s are not necessarily accurate and may not record some doses of radiation; controls for radiation exposure during the Veteran's period of service were less encompassing compared to the present; the Veteran's actual exposure may have been higher than recorded because it is not clear that he wore his badge at all times; there is no evidence that the dosimetry calculations by the Naval Dosimetry Center was made by a physician; and the record does not contain another more likely etiology of the Veteran's CLL. Dr. C.N.B. cited to the 2000 fifth edition of Radiobiology for the Radiologist. In light of Dr. C.N.B.'s opinion, the Board remanded the claim in June 2006 for further development under 38 C.F.R. § 3.311. The claim was to be referred to the Under Secretary for Benefits to address the relationship between the Veteran's CLL and his exposure to ionizing radiation during active military service with consideration of Dr. C.N.B.'s recent medical opinion. An advisory opinion from the Under Secretary of Health was to be requested if necessary. After the claim was referred to the Under Secretary for Benefits in April 2007, the Director for Compensation and Pension Service referred the claim to the Under Secretary for Health for a dose estimate and medical opinion. The Chief Public Health and Environmental Hazards Officer, now L.R.D., M.S.P.H., M.D., issued a memorandum dated in May 2007 in response to the referral. Based on the Veteran's personnel records from the Navy, Dr. L.R.D. provided a dose estimate of .939 rem gamma and X-ray and .144 rem skin. The previous estimates of .937 and .949 rem total gamma plus neutron and .128 rem total skin dose were also noted. In the memorandum, Dr. L.R.D. cited to several publications concerning exposure to ionizing radiation and CLL, including: the 1985 Report of the National Institutes of Health Ad Hoc Working Group to Develop Radioepidemiological Tables; the 1990 Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V); the 1995 second edition of Medical Effects of Ionizing Radiation; the 1995 Effects of Atomic Radiation; the 1996 Health Effects of Exposure to Low-Level Ionizing Radiation; the 2002 Technical Documentation Report from the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH); the 2006 Health Risks from Exposure to Low Levels of Ionizing Radiation (Biological Effects of Ionizing Radiation (BEIR) VII Phase 2) from the National Research Council; and the CIRRPC report. Dr. L.R.D. indicated that the studies show that the susceptibility of bone marrow to induction of CLL by radiation appears to be very low or absent and that CLL is not likely to be induced by radiation exposure. An estimate of the likelihood that radiation was responsible for the Veteran's CLL was given as .53 percent probability of causation. The estimate was created by computer software based on recommendations by the Veterans Advisory Committee on Environmental Hazards (VACEH). Because CIRRPC does not provide screening doses for lymphomas, a comparison to non-Hodgkin's lymphoma was used. In light of the information, Dr. L.R.D. gave the opinion that it is unlikely that the Veteran's CLL can be attributed to occupational exposure to ionizing radiation in service. Dr. C.N.B.'s opinion on the matter was addressed in the May 2007 memorandum. Dr. L.R.D. found that the statement "the CLL type of cancer is commonly induced" by radiation exposure is at variance with the cited publications. Dr. L.R.D. noted that other statements and literature references in Dr. C.N.B.'s opinion did not seem to differentiate between the radiogenicity of leukemia in general and that of CLL specifically. Later in May 2007, the Director for Compensation and Pension Service stated that there was no reasonable possibility that the Veteran's CLL could be attributed to exposure to ionizing radiation in service. The Director relied on the opinion obtained by the Under Secretary of Health. In the appellant's case, there are conflicting medical opinions with respect to the relationship between the Veteran's CLL and his in-service exposure to ionizing radiation. The Board must weigh the opinions in light of the entire record. See, e.g., Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The appellant's representative argues that the two private medical opinions, and in particular Dr. C.N.B.'s opinion, have more probative value than the medical opinions obtained by VA from the two Chief Public Health and Environmental Officers. The representative asserts that both Dr. W.D. and Dr. C.N.B. have the appropriate expertise in the areas of medicine necessary to provide an adequate opinion and that the VA physicians do not have similar specialized education and training. The representative also asserts that the VA opinions are inadequate because they were based on inaccurate dose estimates. At the least, the representative contends that the medical opinion evidence is in equipoise and the appellant's claim should be granted based on the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In regards to Dr. W.D., the representative states that Dr. W.D. was the Veteran's treating physician who had a better understanding of the Veteran's CLL and medical history. Because Dr. W.D. actually treated and examined the Veteran, the representative states that he was better able to understand the complexities of the Veteran's disease. Additionally, Dr. W.D.'s specialty is oncology. As to Dr. C.N.B., the representative states that Dr. C.N.B. has received extensive training in the harmful effects of radiation and is a Board-certified radiologist with a specialty in neuro-radiology. The representative also states that Dr. C.N.B. was also able to review the information and evidence in the claim file, including Dr. S.H.M.'s opinion, and he produced a detailed report on the Veteran's case. In sum, the representative contends that the opinions from Drs. W.D. and C.N.B. constitute sufficient competent medical evidence to establish the nexus element of the appellant's service connection claim, in general, and on the basis of a claim based on exposure to ionizing radiation. The Board finds no reason to discount the two private medical opinions based on the physicians' expertise and qualifications as medical professionals. However, the Board accords less weight to the private opinions because they fail to adequately address the salient issue in the appellant's claim-the relationship between CLL and exposure to ionizing radiation. The crucial question in this case is not whether exposure to ionizing radiation provides an etiological basis for any form of leukemia, but whether it provides an etiological basis specifically for CLL. To be sure, the positive relationship between all forms of leukemia other than CLL is already set forth in the governing laws and regulations pertaining to radiation exposure. Section 3.309(d) provides for the presumption that non-CLL types of leukemia are to be service connected for radiation-exposed veterans. Additionally, non-CLL leukemia is considered a radiogenic disease in the application of 38 C.F.R. § 3.311. Unlike the provisions of 38 C.F.R. § 3.309(a) pertaining to presumptive service connection for chronic disease where "leukemia" is listed without exception, in regards to the radiation exposure provisions, CLL is expressly excluded. Thus, in the present case, a medical opinion that differentiates between leukemia in general and CLL specifically is of more probative value. In light of the importance of specifically addressing CLL, the Board does not find Dr. W.D.'s October 1991 opinion to be persuasive. In linking the Veteran's leukemia to his in-service radiation exposure, Dr. W.D. relied on medical literature and his own knowledge that there is a strong correlation between leukemia and radiation exposure, such as when there was exposure to radiation from the atomic bombs at Hiroshima and Nagasaki. Assuming the Veteran had non-CLL leukemia, such an opinion might be of substantial probative value. However, that is not the case; thus, Dr. W.D.'s opinion has little probative value. For similar reasons, the Board does not find Dr. C.N.B.'s February 2006 opinion to be persuasive. Although Dr. C.N.B. specifically linked the Veteran's CLL to his in-service exposure to ionizing radiation, his support for the conclusion appears to relate to leukemia generally, not to CLL specifically. For instance, Dr. C.N.B. states that "the literature supports a link between radiation exposure and leukemia" and that "the [Veteran] died from leukemia," without differentiating between non-CLL leukemia and CLL. Moreover, the treatise to which Dr. C.N.B. cited, along with the incorporated graphs and table, appear to refer to the relationship between radiation exposure and leukemia. The Board finds no support in the opinion that establishes a positive relationship between radiation exposure and CLL. Assuming the Veteran had non-CLL leukemia, Dr. C.N.B.'s opinion might be of substantial probative value. However, as noted previously, that is not the case; thus, similar to Dr. W.D.'s opinion, Dr. C.N.B.'s opinion has little probative value. In contrast to the two private medical opinions, the two opinions obtained by VA specifically address the relationship between radiation exposure and CLL. Drs. S.H.M. and L.R.D. came to the same conclusion-it is unlikely that the Veteran's CLL can be attributed to exposure to ionizing radiation in service. In their memoranda, Drs. S.H.M. and L.R.D. cited to no less than seven studies or reports that appear to show that ionizing radiation exposure is not an etiologic basis for CLL. Dr. L.R.D.'s memorandum was produced subsequent to Dr. C.N.B.'s opinion. To the extent Dr. C.N.B. concluded that CLL is a type of cancer that is commonly induced by radiation exposure, it was Dr. L.R.D.'s opinion that the conclusion was at variance with the several publications that were cited in the May 2007 memorandum. Part of the rationale for the Board's June 2006 remand was to ascertain whether medical literature regarding the effects of ionizing radiation on the development of CLL had been revised subsequent to Dr. S.H.M.'s April 1998 opinion. It does not appear that this is the case as Dr. L.R.D. cited to a publication from as recent as 2006 indicating that CLL is not likely to be induced by radiation exposure. The Board concedes that the claims file does not contain explicit evidence indicating that Dr. S.H.M. or Dr. L.R.D. has the expertise or qualifications similar to Dr. W.D. or Dr. C.N.B. Nevertheless, they are physicians and VA presumably determined that they had the requisite expertise as Chief Public Health and Environmental Officers to address ionizing radiation cases in the context of 38 C.F.R. § 3.311. They certainly qualify as medical professionals that are capable of providing competent medical evidence. See 38 C.F.R. § 3.159(a)(1). Even so, in this case, the Board's responsibility of weighing the conflicting opinions does not, as argued by the representative, come down to a "battle of expertise" of the four medical professionals. Rather, the probative value of the medical opinions hinges on assessing the relationship between exposure to ionizing radiation and the development of CLL as differentiated from leukemia in general. Drs. W.D. and C.N.B. did not sufficiently support their opinions because they did not make the distinction, or at least they did not address the distinction between CLL and all other leukemia that has been set forth in the relevant medical literature. Drs. S.H.M. and L.R.D., on the other hand, cited to several publications that did not find a positive relationship between CLL and exposure to ionizing radiation. Despite the authors' expertise and qualifications, the opinions from Drs. W.D. and C.N.B. do not contain information to refute these reports and studies. Medical opinions that address the question at hand and that are based on germane medical literature published by other medical professionals who presumably possess sufficient expertise on the subject are more persuasive and ultimately more probative than opinions that do not have those qualities. This is so in the case at hand as the opinions of Drs. S.H.M. and L.R.D. are more persuasive in that they address the critical question, they are supported by appropriate medical literature, and they find support in the record. Thus, the opinions have more probative value. In regards to the dose estimates of record of the Veteran's in-service exposure to ionizing radiation, the Board does not find any reason to doubt the accuracy of the dose estimates or that the claim should otherwise be remanded for further dose estimates. In the Veteran's case, his exposure to ionizing radiation was documented throughout his period of service in which he served aboard nuclear submarines and participated in duties that led to radiation exposure. As noted by Dr. L.R.D, three levels of whole body radiation exposure doses have been estimated based on the official information-.937, .949, and .939 rem. In the sense that the doses are indeed estimates, slight variations may be expected. Dr. C.N.B. set forth several unsubstantiated theories of why the Veteran's exposure to radiation may have been higher than what was provided in the dose estimates. However, Dr. C.N.B. did not suggest any specific level of in-service exposure to radiation that he believes would be accurate. More importantly, he stated that the dose of .949 rem would be sufficient for tumor induction because there is no threshold dose according to Dr. C.N.B. Thus, in his own words, Dr. C.N.B. implied that the level of exposure was not relevant to his opinion and that the dose estimate of .949 rem was sufficient to reach a conclusion. In sum, the Board finds that the claim of service connection for the cause of the Veteran's death must be denied. The Veteran's CLL did not have its onset during his active military service or to a compensable degree within one year of his separation from service. See 38 C.F.R. §§ 3.303, 3.309(a). Additionally, CLL is specifically excluded from the list of diseases specific to radiation-exposed veterans and the list of radiogenic diseases for claims based on exposure to ionizing radiation. See 38 C.F.R. §§ 3.309(d), 3.311(b)(2). Furthermore, the competent medical opinion evidence obtained by VA indicating that it is unlikely that the Veteran's CLL can be attributed to exposure to ionizing radiation in service has more probative value than the medical opinion evidence that did not differentiate between leukemia in general and CLL specifically. Thus, the nexus element of a service connection claim in general, and specifically within the provisions of claims based on exposure to ionizing radiation has not been established. See 38 C.F.R. §§ 3.303(d), 3.311(c). In reaching the conclusion that the claim must be denied, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the greater weight of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs