Citation Nr: 1322384 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 06-14 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependant's Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had active military service from June 1962 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In June 2009 this matter was last before the Board at which time it was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND When this matter was last before the Board, it was remanded to develop the claim for service connection for the cause of the Veteran's death as possibly due to exposure to ionizing radiation. In furtherance of these remand directives, the AMC/RO contacted the Defense Threat Reduction Agency (DTRA). In letters dated in July and September 2011 the DTRA responded indicating that the Veteran did not participate in any nuclear testing. However, in its July 2011 response, the DTRA indicated that information on radiation exposure from sources other than nuclear testing for Army personnel might be available through the Proponency Office for Preventive Medicine in San Antonio, Texas. VA is under a duty to make as many requests as are necessary to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Accordingly, the matter must be remanded to attempt to obtain any possibly outstanding records in this regard. Along these lines, the Board notes that it does not appear that the Veteran qualifies as a radiation exposed Veteran under 38 C.F.R. § 3.309(d)(3). His surviving spouse asserts radiation exposure due to being present in Alaska near sites possibly contaminated with radiation due to underground nuclear testing. Nevertheless, development in this regard is appropriate under 38 C.F.R. § 3.311. The Appellant is seeking service connection for the cause of the Veteran's death. The evidence of record indicates that his death was caused by an acute form chronic myelogenous leukemia that underwent blastic transformation. See April 2005 letter from Dr. Brown. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. At the time of the Veteran's death, service connection was not in effect for any disability. Notably, in a June 2006 letter, Dr. Brown related that it was apparent that the Veteran had been exposed to toxic solvents about 20 years prior to the onset of myeloid leukemia, which was consistent with the time interval seen in cases of solvent exposure-related leukemia. Dr. Brown alluded that such an exposure was a potential cause of the Veteran's leukemia and his death in 1989. The appellant contends that the Veteran's service in Alaska involved exposure to various chemicals, including toxic solvents. In support of her claim, she submitted several articles regarding dump sites in Alaska, in particular Fort Richardson, where the Veteran was stationed in 1963. These articles generally reveal that areas in Alaska near where the Veteran was stationed were potentially contaminated with toxic substances. The above-outlined set of facts raises the question of whether the Veteran incurred myelogenous leukemia in service that precipitated his death in 1989, particularly due to exposure to some sort of chemical, or that the development of myelogenous leukemia is attributable to service in this manner. There appears to be little question that this condition resulted in his death in 1989. Accordingly, the Board finds that a medical opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Along these lines, the Board notes that the appellant also contends that the Veteran's myelogenous leukemia and resultant death might be attributable to exposure to herbicides. She particularly asserts that the Veteran may have been exposed to herbicides while stationed in Alaska, particularly from the usage of exfoliants on the Haines-Fairbanks Pipeline Corridor. Upon remand, the examiner is asked to address the possible etiological relationship to exposure to herbicides. If the examiner finds it is at least as likely as not that the Veteran's myelogenous leukemia was caused by exposure to herbicides, the AMC/RO is directed to develop evidence of exposure to herbicides in Alaska. Lastly, because the appellant's claim for Chapter 35 benefits is inextricably intertwined with the pending service connection claim for cause of death, it is appropriate to defer consideration of this claim until the development requested is complete. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, a decision on the Chapter 35 issue is deferred pending completion of the actions requested below. Accordingly, the case is REMANDED for the following action: 1. Request any available records concerning the Veteran's exposure to radiation from: Director Proponency Office for Preventive Medicine - San Antonio ATTN: MCPO - SA, Lieutenant Colonel G. M., U.S. Army 2050 Worth Road, Suite 25 San Antonio, Texas 78234-6025 Perform any and all follow-up as necessary, and document negative results. 2. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran's records concerning his radiation exposure, including any service records, statements and testimony regarding radiation exposure, and any other information obtained from the above information request, to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the appellant is required regarding specifics of the Veteran's alleged exposure, she should be contacted and asked to provide the information. 3. If the above-requested development results in a positive dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). 4. Refer the claims file to an appropriate medical professional for a medical opinion to address the appellant's claim for service connection of the Veteran's death due to myelogenous leukemia. All indicated studies should be conducted. The claims file should be available for review by the examiner. The examiner should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran incurred myelogenous leukemia in service, or that the condition is otherwise attributable thereto, including claimed exposure to solvents and/or other toxic substances, including herbicides, buried mustard gas cylinders and heavy metals. Any and all opinions must be accompanied by a discussion of the underlying reasons, which may include citations to medical treatises and literature. If the medical expert is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further evidence or information would be useful in rendering an opinion. 5. If the examiner opines that it is at least as likely as not that the Veteran's cause of death is attributable to herbicides and the claim was not granted under any other etiologic theory, the AMC/RO is to undertake development on whether the Veteran was exposed to herbicides during his service in Alaska, particularly from the reported use of exfoliants on the Haines-Fairbanks Pipeline Corridor. 6. After the development requested above has been completed to the extent possible, the AMC/RO should again review the record and adjudicate the claims on appeal. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).