Citation Nr: 1331457 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 08-19 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Whether new and material evidence has been added to the record to reopen a claim of entitlement to disability and indemnity compensation (DIC). 2. Entitlement to DIC based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to October 1970. He died in January 1997. The Appellant is his widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was previously before the Board in December 2010 and was remanded for additional development. In August 2010, the Appellant testified at a personal hearing before the undersigned. A transcript of the hearing is of record. FINDINGS OF FACT 1. In an unappealed April 2001 decision, the RO denied the Appellant's claim of entitlement to DIC. 2. Evidence added to the record since the April 2001 decision, that is not cumulative or redundant of evidence then of record, relates to an unestablished fact necessary to substantiate a claim of entitlement to DIC and raises a reasonable possibility of substantiating that claim. 3. The Veteran's death certificate reflects that, on January [redacted], 1997, he died of subdural hematoma due to the underlying causes of chronic myelogenous leukemia and chronic renal failure. 4. The Veteran had no service-connected disability at the time of his death. 5. A subdural hematoma, chronic myelogenous leukemia, or chronic renal failure were not manifested during the Veteran's service or in the first post-service year, and are not etiologically related to the Veteran's service. CONCLUSIONS OF LAW 1. The April 2001 decision, in which the RO denied entitlement to DIC, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The criteria for reopening a claim of entitlement to DIC have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). I.A. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in March 2006 and January 2011 the Appellant was informed of the evidence and information necessary to substantiate the claim, the information required of her to enable VA to obtain evidence in support of her claim, the assistance that VA would provide to obtain evidence and information in support of her claim, and the evidence that she should submit if she did not desire VA to obtain such evidence on her behalf. In the January 2011 letter the appellant received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, in a May 2001 Supplemental Statement of the Case, there is no prejudice to the appellant in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In specific consideration of the claim of service connection for the cause of the Veteran's death, the Board notes that in the adjudication of a DIC claim under 38 U.S.C.A. § 1310, when a Veteran had service-connected disability during his lifetime, VCAA notice must include a statement of the conditions for which a veteran was service connected at the time of his or her death. Hupp v. Nicholson, 21 Vet. App. 342, 352-3 (2007). The January 2011 VCAA letter informed the Appellant that the Veteran had no service-connected disability at the time of his death. Here, the claim of entitlement to DIC had been previously denied by the RO in an April 2001 rating decision. There are special notice requirements with regard to the evidence required to reopen a finally denied claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Although that notice was not provided to the Appellant, the RO implicitly reopened the claim and decided it on the merits and the Board here reopens the claim and decides it on the merits. As the purpose of the notice specific to reopening previously denied claims has been served, the lack of the specific notice cannot result in prejudice to the Appellant. I.B. Duty to Assist An April 2006 Personnel Information Exchange System (PIES) response to an RO request indicates that the Veteran's service treatment records are not available and are "fire-related"; i.e. the records are presumed to have been destroyed in a1973 fire at the National Personnel Records Center (NPRC). In March 2006 and August 2006 RO correspondence the Appellant was informed that VA had been unable to obtain the Veteran's service treatment records and she was asked to submit any copies of such records in her possession. Based on the foregoing, the Board finds that further efforts to obtain service medical records would be futile, and hence, VA has no remaining duty to make such efforts. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). The Veteran's terminal hospitalization records are associated with the claims file, as are other various private treatment records. The general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Accordingly, in April 2011 an opinion was obtained that addresses the medical matters presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate. The April 2011 VA examiner's opinion considered the pertinent evidence of record, the relevant history, and provided a rationale for its conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). I.C. Remand Compliance The April 2011 VA examiner also addressed the questions as directed by the Board's December 2010 remand. While the April 2011 VA examiner was not an oncologist, as requested in the Board's December 2010 remand, there has been no showing or even an assertion that the April 2011 VA physician lacks the requisite medical training, expertise, and credentials needed to render the opinion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. The Board finds that there has been substantial compliance with its December 2010 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in April 2011 VA obtained a medical opinion that addressed the medical matters presented by this appeal and contained answers to specific questions enumerated in the December 2010 remand. Further, the Appellant indicated that she did not require any assistance in obtaining records from the office of Dr. M.L. as such records had been destroyed. I.D. Board Hearing During the August 2010 Board hearing, to assist the Appellant, the undersigned began the hearing by informing her, in detail, of the evidence that would be most useful in substantiating her claim. The Appellant was also encouraged to make an effort to obtain private records concerning blood testing that the Veteran had undergone. The undersigned also informed the Appellant that the record would be held open for 60 days in an effort to give her additional time to submit evidence in support of the appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010). As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2013) and that the Board can adjudicate the appeal based on the current record. The Appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. II. Service Connection for Cause of Death To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of 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 thereto. 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 it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause 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 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). Service connection will be granted if it is shown that the veteran suffered from disability resulting from an injury suffered or disease contracted in line of duty in active service, or for aggravation in line of duty in active service of a preexisting injury suffered or disease contracted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). To establish a right to compensation for a present disability, the evidence must show that following: (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. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2010). Service connection will be presumed for certain specific chronic diseases, such including malignant tumors, nephritis, and cardiovascular disease, if such diseases become manifest to a compensable degree within a year after the veteran's discharge from active duty. 38 U.S.C.A. §§ 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309. (2013). A presumption of service connection exists for certain enumerated diseases based on exposure to Agent Orange during service. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 C.F.R. § 3.307(a)(6). Furthermore, the diseases listed at 38 C.F.R. § 3.309(e) shall, in turn, be presumptively service connected if this requirement is met, even though there is no record of such disease during service. The following diseases are among those associated with herbicide exposure for purposes of the presumption: all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia). 38 C.F.R. § 3.309(e). II.A. Service Connection for Cause of Death - Reopening the Claim VA first received a VA Form 21-534, application for DIC from the Appellant in November 2000. The RO denied that claim in a decision mailed to the Appellant and her representative in April 2001. Included in that mailing was notice of her procedural and appellate rights. Under 38 U.S.C.A. § 7105(a), an appeal to the Board of an RO disallowance of a claim, must be initiated by a notice of disagreement. 38 U.S.C.A. § 7105(a) (West 2002). Except in the case of simultaneously contested claims, which this is not, if VA does not receive a notice of disagreement within one year of the mailing of notice of the disallowance, the decision becomes final and the claim may not be reopened and allowed. 38 U.S.C.A. § 7105(c). If new and material evidence is received within the appeal period of an unappealed RO decision, but not addressed, the decision does not become final. See Young v. Shinseki, 22 Vet. App. 461 (2009) (addressing the effect of 38 C.F.R. § 3.156(b) in such instances). No document that could be considered a notice of disagreement with the April 2001 decision was received within one year of the decision. No evidence relevant to the DIC claim was received within one year of the April 2001 decision. The decision thus became final. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C.A. § 5108 (West 2002), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. "New and material evidence" is evidence not previously submitted to agency decision makers, which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). In the April 2001 rating decision, the RO stated that none of the criteria were met for DIC benefits. From this determination and the fact that the only document of record at that time, as to the cause of his death, was the death certificate, the Board concludes that the unestablished facts necessary to substantiate the DIC claim were an in-service disease, injury or event relevant to the cause of the Veteran's death and a nexus between such event, injury, or disease, and his death. Added to the record following that April 2001 denial are records of terminal treatment of the Veteran in May 1996. Those records state in an "Impression" section that the Veteran had chronic myelocytic leukemia but list in a "Findings" section that he had a history of chronic lympocytic leukemia. Effective in August 2010, VA added chronic B-cell leukemias, including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia, to the list of diseases for which service connection will be presumed based on in-service exposure to herbicide agents, including Agent Orange, under 38 C.F.R. § 3.309(e) (2013). 75 Fed. Reg. 53202 (August 31, 2010). The Veteran's DD Form 214 tends to show that he served in Vietnam during the applicable period. Based on these facts, the Board finds that the May 1996 Eliza Coffee Memorial Hospital records are new and material evidence and the claim must therefore be reopened. II.B. Service Connection for Cause of Death - Merits of the Claim The Veteran's death certificate reflects that he died on January [redacted], 1997, of subdural hematoma due to the underlying causes of chronic myelogenous leukemia and chronic renal failure. The Appellant asserts that the Veteran's death was caused by his chronic myelogenous leukemia, which in turn developed as a result of exposure to Agent Orange during his service in Vietnam. At the August 2011 hearing, the Appellant stated that the Veteran had had abnormal blood results that might have been within a year of the Veteran's discharge. She stated that the Veteran's mother and sister had also been diagnosed with leukemia. The Appellant stated that she would make an effort to obtain the Veteran's blood test records. The Veteran did not submit any claims of entitlement to service connection during his lifetime. A May 1996 record from Kliza Coffee Memorial Hospital includes findings that the Veteran had long-standing chronic lymphocytic leukemia. December 1996-January 1997 treatment records from Kliza Coffee Memorial Hospital indicates that the Veteran was admitted for treatment with a fever of 102 degrees. The Veteran fell in the hospital a few days later and became unresponsive. It was determined that he had a subdural hematoma. The Veteran developed cardiopulmonary arrest and respiratory failure and eventually deteriorated and passed away in January 1997. It was noted that he had been diagnosed with end-stage renal disease in August 1996. An April 2011 VA examiner indicated that the Veteran had been diagnosed with chronic myelogenous leukemia during his lifetime. The examiner stated that the Veteran had never been diagnosed with hairy-cell leukemia or any B-cell leukemia. The examiner stated that it was less likely than not that the Veteran's death was related to his military service. The examiner stated as follows: The veteran was admitted to the hospital on 12/31/96 with a fever and was treated with antibiotics in the hospital. He also fell and sustained a subdural hematoma while in the hospital. The hematoma was thought possibly to be old with a subsequent new bleed. In either case [the Veteran] became unresponsive and developed brainstem herniation. The record states he was taken to surgery and did not do well. He had a cardiac arrest postoperatively and remained unresponsive in the ICU. His condition deteriorated, becoming septic, and he passed away on 1/21/97. Therefore the proximate cause of the veteran's death appears to be the fall and resulting subdural hematoma, with sepsis and chronic renal failure complicating the veteran's condition. The CML [chronic myelogenous leukemia] did not appear to be a major complicating factor in the veteran's death. While the Veteran is presumed to have been exposed to Agent Orange while serving in Vietnam, the preponderance of evidence is against a finding that the Veteran ever had hairy-cell leukemia or any B-cell leukemia. The Veteran's chronic myelogenous leukemia is not among the enumerated diseases for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Accordingly, of service connection cannot be presumed for the Veteran's chronic myelogenous leukemia based on exposure to Agent Orange. While acknowledging that treatment records from Kliza Coffee Memorial Hospital, dated in May 1996, include findings that the Veteran had long-standing chronic lymphocytic leukemia, the April 2011 VA examiner specifically reviewed those records and noted that the diagnosis of chronic lymphocytic leukemia contained in those records was "most likely an error in dictation or transcription. All other records noted a diagnosis of CML." In this regard, the Board observes that in a January 2011 letter the Veteran's private physician stated that the Veteran had a confirmed diagnosis of chronic myelogenous leukemia. Notwithstanding the above, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d F. 3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran had a disability for which service connection can be presumed based on exposure to Agent Orange but must also determine whether the evidence is at least in equipoise as to whether exposure to Agent Orange caused the disease or the disease is otherwise due to service. Thus, the fact that the Veteran's chronic myelogenous leukemia does not meet the requirements of a presumptive regulation does not preclude the Appellant from establishing, in the alternative, service connection by way of proof of actual direct causation. The medical evidence shows that the Veteran was not diagnosed with chronic myelogenous leukemia until approximately two and a half years prior to his death, many years after his October 1970 discharge from military service. As there is no evidence of chronic myelogenous leukemia shown in service or within one year of discharge from service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's chronic myelogenous leukemia and his active service. The Board, however, can find no competent medical evidence linking the Veteran's chronic myelogenous leukemia to his active service. In this regard, the Board notes that no such opinion was expressed in the January 2011 letter from the Veteran's private physician. To the extent it could be construed that the April 2011 VA examiner did not completely address whether the Veteran's chronic myelogenous leukemia might be directly related to the Veteran's military service (as noted by the Appellant's representative's June 2013 written argument), any failure to comply is harmless error, as the examiner indicated that the Veteran's chronic myelogenous leukemia was not a complicating factor in his death. While the words complicating factor are not the "exact words" contained in 38 C.F.R. § 3.312, the Board notes that it is not required that a medical opinion be stated in the precise terms found in a regulation to be considered adequate. Instead, the question becomes whether an opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The April 2011 VA examiner's statement that chronic myelogenous leukemia was not a complicating factor in the Veteran's death, taken together with his comments concerning the Veteran's hematoma and renal disease, unambiguously shows that the Veteran's chronic myelogenous leukemia did not cause or contribute substantially or materially to the Veteran's death. See Monzingo v. Shinseki, 216 Vet. App. 97, 106 (2012) (explaining that in determining whether an expert opinion is adequate, the report must be read as a whole). Thus, the April 2011 VA examiner has complied substantially with the purpose for which the opinion was sought. As for the probative value of the April 2011 VA opinion, the Board can find no indication that the physician relied on any inaccurate medical history. In fact, the April 2011 VA examiner made specific references to the Veteran's medical history and discussed the pertinent clinical records in detail. The April 2011 VA examiner's rationale (which focused on the Veteran's hematoma and bleeding) is the core and foundation of the opinion offered and carries great probative weight in this case. The April 2011 VA examiner's opinion is essentially uncontradicted. To the extent that the physician who completed the Veteran's death certificate may have linked the Veteran's death to his chronic myelogenous leukemia through the listing of the disease, the Board finds it to be of little probative value as there is no rationale or discussion contained therein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that "most of the value of a medical opinion comes from its reasoning" and that "[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions"). Significantly, this same physician did not provide such a rationale or link in his January 2011 letter. The Appellant's assertions that the Veteran's chronic myelogenous leukemia was related to his service and was a contributing factor to the Veteran's death have been considered. To the extent that such constitute medical opinions, the Board finds that her statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). It is well known that whether exposure to environmental hazards or some specific substance causes cancer is the subject of extensive research by medical professionals. Whether the Veteran developed chronic myelogenous leukemia as a result of exposure to Agent Orange during service is not is not a simple question. Nor is it a question that can be resolved by mere observation by one's senses. For these reasons, the Board finds that the Appellant's opinion in this regard is not competent evidence and therefore not probative of any fact in this case. In the same manner, while the Appellant has submitted medical articles in support of the claim, the articles do not support a finding that the Veteran's chronic myelogenous leukemia is related to service, to include exposure to Agent Orange. The article provides only that the disease is not hereditary and that leukemia can occur due to damage to DNA. In short, the medical literature submitted by the Appellant does not contain the specificity to constitute competent evidence of the claimed medical nexus. As noted, the Veteran's service medical records are not available for review in this case. While the service medical records are missing, the Board notes that the Appellant has not asserted that the Veteran sought treatment during service for a subdural hematoma, chronic myelogenous leukemia, or chronic renal failure. The evidence is against a finding that a chronic disease subject to presumptive service connection manifested during the Veteran's active service or within an applicable presumptive period. Hence the presumptive provisions for chronic diseases are not for application. (CONTINUED ON NEXT PAGE) As the preponderance of evidence is unfavorable to her claim, the Board must deny the Appellant's appeal as to entitlement to service connection for the cause of the Veteran's death. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for the cause of the Veteran's death is reopened, and the appeal is granted to that extent only. Service connection for the cause of the Veteran's death is denied. ____________________________________________ JAMES G. REINHART Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs