Citation Nr: 1327690 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-19 074 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for leukemia for the purpose of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from February 1967 to November 1970. He died in March 2009, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky on a brokered basis. The RO in St. Louis, Missouri most recently had jurisdiction over the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Vietnam. 2. The Veteran died in March 2009; at the time of his death, his claim seeking service connection for leukemia was pending. 3. The evidence on file at the time of the Veteran's death did not establish that he had chronic B-cell leukemia (including hairy-cell leukemia or chronic lymphocytic leukemia). 4. The evidence on file at the time of the Veteran's death did not establish that any leukemia present originated in service, manifested within one year of service discharge, or was otherwise etiologically related to service. CONCLUSION OF LAW For the purpose of accrued benefits, the Veteran did not have leukemia which was the result of a disease or injury incurred in or aggravated by active duty, nor may such a disorder be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In the present case, and prior to the initial adverse adjudication of the claim at issue, VA provided the appellant with the notice contemplated by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as to her accrued benefits claim in February 2010. In that notice, she was informed that she should send medical evidence showing the diagnosis and earliest symptoms for leukemia based on exposure to Agent Orange. Although the notice was thereafter mostly addressed toward establishing service connection for the cause of the Veteran's death, the Board points out that the appellant has demonstrated actual knowledge of the information and evidence necessary to substantiate her claim regarding accrued benefits. In this regard, she has argued, most recently in a June 2013 correspondence, that the Veteran's leukemia arose as a result of exposure to herbicides, and that it was close enough to the type of leukemias for which a presumption of service incurrence is warranted to justify a grant of the claim on that same basis. She clearly is aware that the information and evidence needed to substantiate the claim is that showing that the Veteran's leukemia was of the type subject to presumptive service connection. More importantly, she solicited and submitted a private medical opinion in support of that theory of service connection, demonstrating that she does know what evidence is relevant to the claim. Although the law and regulations pertaining to accrued benefits claims do not allow for the consideration of that private medical opinion, this does not obviate the point that she knew that the opinion was relevant to substantiating the claim. Although the February 2010 notice did not advise the appellant as to the information and evidence necessary to substantiate the initial rating and the effective date to be assigned a grant of service connection on an accrued basis in the event her claim was successful, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), inasmuch as the claim is denied, such a notice deficiency is no more than harmless error. Based on the procedural history of this case, it is the conclusion of the Board that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist the appellant, the Board notes that a decision for accrued benefits must be based on the evidence of record at the time of the Veteran's death. The record contains the Veteran's service treatment records, and neither the Veteran nor the appellant, in any statement to VA, suggested that the Veteran ever sought treatment at a VA facility. No additional information has been identified that would have been in VA's actual or constructive possession at the time of the Veteran's death. Consequently, there is no additional evidence for VA to obtain. In addition, as the instant decision must be based on the evidence of record at the time of the Veteran's death, a VA opinion concerning the etiology of the Veteran's leukemia, for accrued benefits purposes, is not necessary. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the accrued benefits claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012). While an accrued benefits claim is separate from a Veteran's claim filed prior to death, the accrued benefits claim is derivative of the Veteran's claim; thus, an appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). "[A] pending claim" is defined as "an application, formal or informal, which has not been finally adjudicated." 38 C.F.R. § 3.160(c) (2012). The Veteran died in March 2009, following receipt of his application seeking service connection for leukemia. The appellant filed an application for Dependency and Indemnity Compensation benefits, including for accrued benefits, in September 2009. The application was received within one year after the date of the Veteran's death; thus, it was filed in a timely manner. As the Veteran's claim seeking service connection for leukemia was pending at the time of his death, an adjudication of that claim is appropriate. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002)) 38 C.F.R. § 3.303 (2012). In addition, certain chronic diseases, including leukemia or malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. § 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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. 38 C.F.R. § 3.303(d) (2012). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The second and third elements may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b), but only for those diseases recognized as "chronic" by VA pursuant to 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Chronicity in such cases is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease. Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. A Veteran who served in Vietnam is presumed to have been exposed to herbicides during that service. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). If a Veteran was exposed to an herbicide agent during active service, certain diseases, including all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic anemia) and non-Hodgkin's lymphoma are deemed service-connected. 38 C.F.R. § 3.309(e) (2012). The Veteran's service treatment records are silent for any findings or diagnosis of leukemia. He consistently denied any history of tumor, growth, or cancer. His DD Form 214 showed that he served in Vietnam for almost a full year; he earned the Army Aviation Badge and the Air Medal. On his January 2009 claim seeking service connection for leukemia, the Veteran reported that his leukemia originated from exposure to Agent Orange, and was diagnosed in 2007; he did not identify the type of leukemia involved. In another statement, he explained that he flew in the air over Vietnam, and touched down in that country. In a third statement, he explained that he assumed his leukemia was a presumptive condition. The Veteran died in March 2009. Beginning in April 2009, numerous private medical records detailing the nature and course of treatment for his leukemia were received by VA. In August 2010, the private physician who treated him for leukemia wrote an opinion in connection with the appellant's claim. Unfortunately, as the records and medical opinion were generated by private, and not VA medical facilities and were received after the Veteran's death, the Board is precluded by law from basing a decision on those documents. In consequence, the sum total of evidence on file pertaining to the Veteran's claim when he died consisted of service treatment records which are silent for any reference to leukemia, a service personnel document showing that the Veteran served in Vietnam (and thus was presumed exposed to herbicides), and the Veteran's assertion made decades after service that he had leukemia that was due to exposure to herbicides. The Board notes that a layperson is competent to report a diagnosis of disability relayed to him by an examiner, and in some cases is competent to offer a lay diagnosis of a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, although it is clear that the Veteran did have leukemia when he filed his claim, he did not specify the type of leukemia involved. This omission is crucial in this case, as VA only recognizes some types of leukemia as entitled to a presumption of service connection, namely B-cell leukemias, including hairy-cell and chronic lymphocytic leukemias. (The Board notes that at the time the Veteran died, VA only recognized chronic lymphocytic leukemia as the sole type of leukemia subject to presumptive service connection.) VA has specifically declined to recognize all other type of leukemias as entitled to the same presumption. See 77 Fed. Reg. 47,924, 47,927 (2012); 72 Fed. Reg. 32,395, 32,399 (2007) (explaining that chronic lymphocytic leukemia is only one of four primary leukemias). Nor does the Board have a basis to assume the Veteran meant that his leukemia was of the type subject to presumptive service connection. The Veteran indicated that he assumed it was subjective to presumptive service connection, but this is not sufficient to establish that he intended to state that his leukemia was chronic lymphocytic leukemia or a B-cell leukemia. Moreover, even assuming the Veteran did intend to state that he had chronic lymphocytic leukemia or a B-cell leukemia, the Board points out that the determination of the type of cancer involved is something clearly beyond the realm of lay expertise. See Jandreau, 492 F.3d at 1377 (noting in Footnote 4 that a layperson is not typically competent to identify his or her form of cancer). From his application, it appears the Veteran was relying solely on the assistance of a presumption of service incurrence. Assuming, however, he was also impliedly offering his own opinion that his leukemia was otherwise related to service, the Board finds that the determination of the etiology of leukemia, particularly where the disorder first manifests decades after service, is also clearly beyond the realm of lay expertise, and such an opinion by the Veteran would not serve as competent evidence. In short, the evidence on file at the time of the Veteran's death showed that service treatment records were silent for any reference to leukemia, that leukemia was first identified (via the Veteran's report on his claim) more than 30 years after service, and that there was no competent evidence either establishing that the Veteran's leukemia was classifiable as chronic lymphocytic leukemia, B-cell leukemia or hairy-cell leukemia, or that the leukemia was otherwise etiologically related to service (including to exposure to herbicides). In light of the above, the Board finds that the preponderance of the evidence is against the claim of service connection for leukemia for the purpose of accrued benefits. The claim is denied. 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for leukemia for the purpose of accrued benefits is denied. REMAND Initially, the Board emphasizes that the determination in the prior section has no bearing on the ultimate determination concerning the remaining issue of service connection for the cause of the Veteran's death. The remaining issue involves consideration of all the evidence on file, and not just that actually or constructively of record at the time of death. The appellant contends that the Veteran's fatal intracranial hemorrhage was occasioned by his T-cell prolymphocytic leukemia ("T-cell PLL"), and that T-cell PLL is "similar enough" to chronic lymphocytic leukemia ("CLL") as to be entitled to the same presumption of service incurrence. The Veteran served in Vietnam and is presumed to have been exposed to herbicides, including Agent Orange. As already noted, the list of diseases that are presumed to have been caused by such herbicide exposure includes all chronic B-cell leukemias (including, but not limited to hairy-cell and chronic lymphocytic leukemia), and non-Hodgkin's lymphoma. As explained previously, VA's Secretary has specifically declined to extend the presumption to other leukemias. At the time of the Veteran's death in March 2009, service connection was not in effect for any disorder. Following the Veteran's death, private medical records for 1996 through March 2009 were received. Those records show that prior to 2007, blood testing showed white blood cell counts were within the identified reference range for normal, and there otherwise were no findings or diagnosis of leukemia. In early 2007, the Veteran presented with complaints of lethargy, and blood testing revealed elevated white blood cell counts. A bone marrow biopsy in April 2007 showed clear evidence of a clonal T-cell process, and the B-cells showed polyclonal light chain expression; the interpreting pathologist concluded that "a diagnosis of peripheral T-cell lymphoma, unspecified, is favored." In a May 2007 entry, Dr. P. Westervelt noted that recent flow cytometry and cytospin morphology were consistent with T-cell prolymphocytic leukemia, but that the Veteran's clinical course was more akin to that of a more benign lymphoid neoplasm such as CLL. He advocated a conservative approach to treatment. In another May 2007 entry, Dr. Westervelt noted that the Veteran had an apparent low-grade T-cell lymphoproliferative disorder, and that the Veteran's actual diagnosis was unclear; he noted that the differential diagnoses included T-cell PLL, but that he was skeptical of this diagnosis in light of the relatively non-aggressive clinical picture. The records show that the Veteran's progress was observed until July 2008, when he was found to have increased lymphadenopathy. He then underwent multiple rounds of chemotherapy. From that point forward, Dr. Westervelt and most of the Veteran's other treating physicians consistently described the Veteran as having T-cell PLL, without reference to CLL. The record shows, however, that the individuals interpreting the Veteran's numerous diagnostic studies would occasionally record the Veteran's medical history as involving non-Hodgkin's lymphoma or CLL, although they did not transfer this history into their final conclusions. The "expiration summary" for the Veteran's death prepared by the facility at which he died indicated that he had a history of progressive T-cell lymphocytic leukemia, and that during his final hospitalization was found to have an intracranial bleed. His certificate of death lists the intracranial bleed as the cause of death. In support of her claim, the appellant in January 2010 submitted an internet article from cancer.net. The article indicates that there are four main types of leukemia, namely acute and chronic lymphocytic leukemia, and acute and chronic myeloid leukemia. The article further indicates that T-cell leukemias are a subtype of chronic lymphocytic leukemia. In an August 2010 statement, Dr. Westervelt wrote that the Veteran died from complications of T-cell PLL. He explained that prolymphocytic leukemia shared many features with CLL, in that up to 15 percent morphologic prolymphocytes can be seen in CLL. He also explained that an overlap syndrome existed, classified as CLL /PLL, in which 15 to 55 percent prolymphocytes are observed, suggesting that both disorders represent more of a biologic continuum than distinct disease entities. He noted that prolymphocytic leukemia often evolves out of pre-existing CLL. He concluded that, based on the clinical and pathologic similarities, as well as the inability to rule out progression from pre-existing CLL, he could not understand why VA recognizes CLL as entitled to a presumption of service incurrence, but not PLL. From the above, it is unclear whether T-cell PLL qualifies as a type of CLL, which would then warrant the presumption of service connection, or whether it is a disease process separate from CLL. Also unclear is whether the Veteran did have a B-cell leukemia or CLL initially, from which a T-cell PLL eventually evolved. Unfortunately, the evidence currently on file does not answer either question. In particular, Dr. Westervelt raised the possibility that there may have been a CLL which evolved, but he offered no actual conclusion on this matter. There is also the possibility that the Veteran's cancer may have been a non-Hodgkin's lymphoma, although as already noted, virtually all of his treating physicians eventually described the cancer as a T-cell PLL. The Board also notes that in a September 2010 correspondence, the appellant indicated that she wished to add consideration of ischemic heart disease to her claim seeking service connection for the cause of the Veteran's death. Presumably, she believes that the Veteran had ischemic heart disease secondary to his service in Vietnam, which in turn caused or contributed substantially and materially to his death. The record reflects that the RO has not considered that theory of entitlement in this case. Given the above, the Board finds that a VA medical opinion is required. Accordingly, this case is REMANDED for the following actions: 1. Contact the appellant and request that she identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to her remaining claim on appeal. When the requested information and any necessary authorizations have been received, attempt to obtain copies of all pertinent records which have not already been obtained. 2. Forward the Veteran's claims files to a physician with appropriate expertise, preferably an oncologist, to determine the nature and etiology of the Veteran's leukemia. The examiner is requested to answer each of the following: A. To the extent possible, identify each type of leukemia that developed in the Veteran. B. Is it at least as likely as not that the Veteran developed non-Hodgkin's lymphoma? C. Is it at least as likely as not that the Veteran developed chronic lymphocytic leukemia? D. Is it at least as likely as not that the Veteran developed a B-cell leukemia, including, but not limited to hairy-cell leukemia? E. Is T-cell prolymphocytic leukemia a separate disease process from chronic lymphocytic leukemia, or is T-cell prolymphocytic leukemia properly classifiable as a chronic lymphocytic leukemia (or a subtype of that disease)? F. With respect to each type of leukemia and/or non-Hodgkin's lymphoma the reviewer finds the Veteran had developed, is it at least as likely as not that such disease caused or contributed substantially or materially to the Veteran's death, including through causing or aggravating the fatal intracranial bleed? The examiner should provide a complete rationale for each opinion offered. 3. Thereafter, forward the Veteran's claims files to a physician with appropriate expertise to determine the nature and etiology of any ischemic heart disease. The examiner is requested to answer each of the following: A. Is it at least as likely as not that the Veteran had developed ischemic heart disease? B. If the examiner determines that the Veteran had developed ischemic heart disease, is it at least as likely as not that the ischemic heart disease caused or contributed substantially or materially to the Veteran's death? The examiner should provide a complete rationale for each opinion offered. 4. Then, and after undertaking any other developmental action deemed necessary, the RO/AMC should readjudicate the issue remaining on appeal. If the benefit sought on appeal is not granted in full the RO/AMC should issue a supplemental statement of the case, and should provide the appellant and her representative an opportunity to respond. After the appellant and her representative have been given an opportunity to respond to the supplemental statement of the case, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant and her representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs