Citation Nr: 1330212 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-20 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from October 1949 to May 1970. The Veteran died in October 2008; the present appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appellant testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2012. A transcript is of record. 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). FINDINGS OF FACT 1. The Veteran died in October 2008 due to acute myelogenous leukemia. 2. At the time of his death, the Veteran was service-connected for a lumbar herniated nucleus pulposus, high frequency hearing loss with tinnitus, and tension headaches. 3. The Veteran worked as an aircraft maintenance technician during service and was exposed to benzene in the course of his duties. 4. The competent evidence is in equipoise regarding whether the Veteran's in-service exposure to benzene substantially and materially contributed to the cause of his death. CONCLUSION OF LAW With resolution of the doubt in favor of the appellant, the criteria for service connection for cause of the Veteran's death are met. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the appellant has been provided all required notice, to include notice pertaining to the effective-date elements of her claim. In addition, the evidence currently of record is sufficient to substantiate her claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013) . The appellant contends that exposure to benzene during service was the underlying cause of the Veteran's death. Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013). Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2013). A service-connected disability is one that was incurred in or aggravated by active service; one that may be presumed to have been incurred or aggravated during such service; or, one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). A service-connected disability is the principal cause of death when that 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). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. 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 an unrelated disability. In the same category would be included service-connected diseases 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 attention as a contributory cause of death, the primary disease being unrelated, from the viewpoint 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. 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 presumed. 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 be generally reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive and debilitating nature. 38 C.F.R. § 3.312(c)(4). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for certain chronic diseases, including leukemia, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran died in October 2008. The death certificate lists the cause of death as acute myelogenous leukemia. At the time of the Veteran's death, service connection was not in effect for leukemia. Service connection was in effect for a lumbar herniated nucleus pulposus, evaluated as 40 percent disabling, high frequency hearing loss with tinnitus, evaluated as noncompensable (0 percent), and tension headaches, evaluated as noncompensable. The service-connected disabilities were not noted on the death certificate as being primary or contributing causes of death. The service treatment records do not show any complaints, treatment or diagnoses related to acute myelogenous leukemia. Furthermore, the post-service records do not indicate that the Veteran had leukemia within a year of service. Service records show that the Veteran worked as an aircraft maintenance technician. A September 1961 evaluation describes an example of the Veteran finding and repairing an engine oil leak. A March 1966 evaluation describes the Veteran's team performing approximately 170 phase and basic post flight inspections on aircraft, which included refueling. An evaluation for the period from December 1966 to March 1967 indicates that the Veteran had an uncanny ability to troubleshoot the systems of the B-52 aircraft. A performance report for the period from March 1968 to December 1968 states that the Veteran's duties included refueling, defueling, maintenance and servicing. In March 2010 a private cancer center physician wrote that the Veteran was initially treated in January 2006. The Veteran's myeloproliferative disorder transformed to acute myelogenous leukemia in 2008. The physician further wrote that benzene is a dangerous chemical that is an additive in gasoline and solvents. It readily evaporates, exposing workers to benzene vapors, and it is absorbed through the skin. Studies have shown that those who work with fuel are often exposed to levels of benzene that are known to cause hematologic disease. Therefore, this physician concluded that more likely than not that the Veteran's acute myelogenous leukemia was related to exposure to fuel during service in the armed forces. A VA physician reviewed the record in May 2011 and opined that it was impossible to provide an opinion without resorting to speculation on whether the Veteran's death due to acute myelogenous leukemia was due to military service, including exposure to benzene in jet fuel. The rationale was that the letter from the private physician could not be given probative value because there was no account of the Veteran's exposure to benzene during his entire life. In addition to exposure from military service, the VA physician did not feel that an opinion could be stated without record of benzene in the water supplies the Veteran used, more information about how long the Veteran smoked, a reliable diary of how often the Veteran filled his gas tank and the amount of spillage, how often the Veteran used a gasoline powered lawnmower or other gasoline powered small devices, whether the Veteran lived in an urban area, his exposure to paints and household solvents, and genetics as related to leukemia. Also of record are various medical journal articles discussing the link between benzene and cancer, including leukemia, and articles regarding the use of benzene in fuels. The appellant testified at the July 2012 hearing that the Veteran was an aircraft mechanic for most of his military service. The Board may not base a decision on its own unsubstantiated medical opinion, but rather may reach a medical conclusion only on the basis of independent medical evidence or adequate quotation from recognized medical treatises. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, the medical opinions of record are in disagreement, with the private opinion favoring the appellant's claim and the VA physician's opinion weighing against it. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds the opinion of the VA physician to be quite informative as it raises considerations useful in establishing with certainty the particular effects of this Veteran's in-service benzene exposure. It's unstated concession, however, is that in-service benzene exposure may well have caused this Veteran's terminal illness. The private physician affirmatively thinks that to be the case for this Veteran of 21 years service. The Board does not settle questions of science, but weighs the evidence it has before it on the particular claim for benefits at issue. Here, the competent medical evidence is at least in equipoise as to whether in-service exposure to benzene caused the Veteran's acute myelogenous leukemia. Accordingly, the claim must be granted. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs