Citation Nr: 1316586 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 08-18 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to June 1984, and from June 1985 to September 1993. The Veteran during his lifetime had reached the rank of an E-9. He died in March 2007. The appellant claims as a surviving spouse. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a July 2007 rating decision of the VA Regional Office (RO) in Reno, Nevada which denied service connection for the cause of the Veteran's death and entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. The appellant was afforded a Board hearing in September 2009 before the undersigned Veterans Law Judge (VLJ) sitting at Las Vegas, Nevada. The transcript is of record. In June 2010, the Board remanded this matter for further development while denying entitlement to DIC. This matter is now ready for Board adjudication. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for PTSD, rated 70 percent disabling, lupus erythematosus, rated 50 percent disabling, residuals of herniated nucleus pulposus with nerve root compression, rated 40 percent disabling, and bilateral hearing loss, atherosclerosis of the aorta, and cluster headaches, each rated as noncompensable. A combined disability evaluation of 90 percent was in effect for service-connected disability for which the Veteran was in receipt of a total rating based on unemployability due to service-connected disability from October 7, 2003. 2. The Veteran died in March 2007; the immediate cause of death was acute myelocytic leukemia (AML). 3. There is no evidence that establishes that atherosclerosis of the aorta did not influence the ultimate death of the Veteran. CONCLUSION OF LAW By resolving all doubt in the Veteran's favor, a disability incurred in or aggravated by service contributed substantially and materially to the cause of death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, as the Board is granting the only claim on appeal, for entitlement to service connection for the cause of the Veteran's death, further discussion of the VCAA is not necessary. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). The appellant was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned VLJ clarified the issue on appeal, explained the concept of service connection, and addressed whether there was outstanding evidence. The actions of the VLJ supplement VCAA and comply with any duty that may be owed during a hearing. The issue before the Board is entitlement to service connection for the cause of the Veteran's death. The appellant avers in her June 2008 substantive appeal that the Veteran's service-connected disabilities aggravated the AML which led to his early demise. Under 38 U.S.C.A. § 1310, when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation (DIC) to the veteran's surviving spouse. To establish that a veteran died from a service related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; 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. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death from the view point of whether there were resulting 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. In cases where the primary causes of death are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, 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. 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)(2)-(4). A claim for service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). After a careful review of the evidence of record the Board finds that the benefit-of-the-doubt doctrine is applicable and the preponderance of the evidence warrants a finding of service connection for the cause of the Veteran's death. The Veteran's death certificate dated March 2007 shows that the immediate cause of his death was AML. The interval between its onset and death was listed as months. The certificate also shows that an autopsy was not performed. Private medical records dated February 2007 indicate that the Veteran was diagnosed with AML in February 2007. At the time of his death, the Veteran was in receipt of service connection for the following disabilities: posttraumatic stress disorder (PTSD) (70 percent disabling); lupus erythematosus (50 percent disabling), cuaneous type; residuals of herniated nucleous pulposis with chronic nerve root compression at L4-L5 (back disability) (40 percent disabling); bilateral hearing loss; atherosclerosis of the aorta (heart disease); and cluster headaches. Entitlement to individual unemployability was established effective October 7, 2003. In support of her claim, the appellant submitted private treatment records dated from July 2005 to March 2007. She indicates that she understood that the presumptive regulations for entitlement to service connection for herbicide exposure does not apply in this case (AML not listed under 38 C.F.R. § 3.309(e)). The appellant does not argue that the disease from which the Veteran died had its onset in service or was manifested within one year thereof. Rather, she expresses that the herbicides that her husband was exposed to in Vietnam was a contributing factor to his death. In a April 2013 brief, the appellant's representative argued that although AML is not inclusive within the Agent Orange presumptive list for types of leukemia covered, the chemical structure of Agent Orange is composed of benzene rings, thus making the argument that by exposure to Agent Orange in Vietnam, the Veteran was exposed to its harmful components (benzene), and referenced that there is literature available which determines a causal relationship between benzene and acute leukemia. Without disputing that the Veteran served in Vietnam and therefore is presumed to have been exposed to herbicides, see 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(iii), the Board notes at the outset AML is not on the presumptive list of diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e) (that names only chronic lymphocytic leukemia (CLL)), hairy cell leukemia and other chronic B-cell leukemias, but not other types of leukemia, including AML). See also Notice, Health Outcomes Not Associated with Exposure to Certain Herbicide Agents, 72 Fed.Reg. 32395-01 (June 12, 2007) (noting that AML is the most common leukemia among adults, and that risk factors for such include high doses of ionizing radiation, occupational exposure to benzene, and some medications used in cancer chemotherapy). VA has determined that there is no positive association between herbicide exposure and AML and other types of leukemia not specifically identified. Although the Board finds that there is no reliable and/or probative evidence indicating that AML is related to service or to herbicide exposure therein, the Board considered whether the service-connected diseases involving active processes affecting vital organs was a contributory cause of the Veteran's death. See 38 C.F.R. § 3.312(c)(3). In this case, such service-connected diseases are lupus erythematosus (50 percent disabling) and atherosclerosis of the aorta (heart disease) (rated as noncompensable). First, the Board notes that both of these disabilities are not rated as 100 percent disabling, thus debilitation cannot be assumed per the regulations. Id. However, the evidence of record cannot rule out the likelihood that the Veteran's heart disease played a role or was a contributing factor to the underlying cause of death. The Board is fully aware that the underlying cause of death was AML. However, the Veteran did have service connected disabilities that had been established during his lifetime, two of them affecting vital organs. The record before the Board had been inadequate and a VA medical opinion was obtained in June 2010 for the purpose of determining if any of the Veteran's service-connected disabilities played any role in causing or contributing to the Veteran's death from AML. The VA physician ultimately concluded that it is less likely as not that the Veteran's service-connected disabilities or military service aggravated or contributed to the cause of the Veteran's death due to AML. However, the Board finds that the June 2010 VA opinion is inadequate because the physician did not consider the extent to which all of the Veteran's service-connected disabilities, particular with respect to heart disease, may have been a contributing factor to the Veteran's underlying cause of death. The VA physician did not provide adequate supporting rationale for his negative nexus opinion. The Board shall not remand again. Among the service connected disabilities were lupus erythematosus and atherosclerosis of the aorta. Clearly, vital organs are inherently impacted in having such disabilities. No competent and probative evidence in the record establishes that the service-connected disabilities did not impact his death. The Board accepts that particularly when the aorta is involved, due consideration must be given as to the impact of that disability. Although debilitation cannot be presumed, the impact of a heart disability on eventual death cannot be ignored. The Agency of Original Jurisdiction (AOJ) had every opportunity to obtain an adequate opinion and it failed to do so. Based upon the record before the Board, we are unable to conclude that the service connected heart disease did not play a significant role in producing death. Resolving all doubt in favor of the Veteran, the preponderance of evidence warrants a finding of a causal connection between the Veteran's service-connected heart disability and AML due to the fact that there is no evidence of record that establishes that the heart disability did not influence the Veteran's ultimate cause of death. Accordingly, the benefit-of-the-doubt doctrine is applied, and entitlement to service connection for the cause of the Veteran's death is granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is granted ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs