Citation Nr: 1331972 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 93-17 771 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean Ravin, Attorney at Law ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from June 1957 to June 1987. The appellant in this case is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., that denied service connection for the cause of the Veteran's death. The procedural history of this case is a lengthy one, involving multiple actions by the Board and several appeals to and remands from the United States Court of Appeals for Veterans Claims (Court). Most recently, in a February 2013 memorandum decision, the Court reversed the Board's determination that a retrospective medical opinion was not necessary and remanded the matter to the Board, after which the Board requested a medical expert opinion. The Board is satisfied that all necessary development has been completed and that the claims folder contains sufficient evidence to allow for adjudication of the appellant's claim. FINDINGS OF FACT 1. The Veteran died in July 1991; the immediate cause of death was chronic lymphocytic leukemia (CLL). 2. It is as likely as not that the disease process leading to the Veteran's death was manifest to a compensable degree within one year of discharge from military service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to 38 U.S.C.A § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A § 1310 (West 2002); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2013). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). Establishing service connection generally 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). In determining whether a veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). In addition, certain chronic diseases, including leukemia, 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. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran served on active duty from June 7, 1957, to June 30, 1987, and died on July [redacted], 1991. His certificate of death lists CLL as the immediate cause of death. A review of the evidence shows that the earliest record pertaining to the Veteran's diagnosis of CLL is a consultation report from Kaiser Permanente, dated on October 24, 1989, and signed by Dr. W.D., a specialist in the fields of oncology and hematology, who indicated that the Veteran was being seen as a result of swelling in the neck and an elevated white blood count. Dr. W.D. provided the first clinical diagnosis of CLL and records dated thereafter from Kaiser Permanente and Northern Virginia Doctors Hospital reflect regular treatment for CLL until the Veteran's death in July 1991. As acknowledged by the appellant in this case (the Veteran's widow), the medical evidence of record does not contain a clinical diagnosis of CLL prior to the diagnosis made by Dr. W.D. in October 1989. The appellant, however, maintains that the Veteran was experiencing symptoms associated with CLL prior to that time, including during his military service and shortly after his separation from service. She has stated that she observed the Veteran experience fatigue, weight loss, loss of appetite, and easy bruising, which she contends were compensable manifestations of the Veteran's CLL. Also of record are statements from friends of the Veteran and appellant who indicated that they observed the Veteran's fatigue and weight loss as early as January 1988. As noted in the introduction, in a February 2013 memorandum decision, the Court the reversed the Board's previous determination that a retrospective medical opinion was not necessary and remanded the matter with instructions to obtain a retrospective medical opinion to determine whether the Veteran's CLL was manifest to a compensable degree within a year of discharge from service. In July 2013, the Board requested that an independent medical expert provide such an opinion. The reviewer was instructed to consider the evidence of record, to include the lay evidence indicating that the Veteran experienced fatigue, weight loss, loss of appetite, and easy bruising during his military service and shortly after his separation from service, along with any relevant evidence contained in treatment records from Dr. W.D., Kaiser Permanente and/or the Northern Virginia Doctors Hospital, and to provide an opinion as to whether that evidence supported a finding that it was at least as likely as not that the Veteran's CLL manifested to a compensable degree, as defined by the applicable rating criteria, on or before June 30, 1988. In an opinion dated in August 2013, V.S., M.D., an attending physician in hematology and oncology, discussed the clinical manifestations of CLL arising from proliferation of mutant lymphocytes, which were noted to include abnormal blood counts, swelling of the lymph nodes, and a variety of systemic symptoms such as fatigue, excessive sweating, and weight loss. Dr. V.S. then opined that it was at least as likely as not that the Veteran had CLL on or before June 30, 1998. Dr. V.S.'s opinion was based on the fact that CLL is typically a chronic disease, that the symptoms described by the Veteran's widow were consistent with symptoms known to occur with CLL, and that the record was devoid of evidence suggestive of an alternative cause for such symptoms. Dr. V.S. also suggested that an interval of less than two years from actual onset to diagnosis would not be unreasonable. Dr. V.S. then equated the severity of the Veteran's symptoms in the year after his discharge from service to "chronic pernicious anemia, following acute attacks with characteristic definite departures from normal blood count, with impairment of health and severe asthenia." Upon review of Dr. V.S.'s opinion, which is not contradicted by any other evidence of record and which the Board can find no adequate basis to reject based on a lack of credibility or probative value, the Board finds that resolving reasonable doubt in favor of the Veteran, it is at least as likely as not the Veteran's CLL manifested to a compensable degree, as defined by the applicable rating criteria, on or before June 30, 1988. See 38 C.F.R. § 4.117, Diagnostic Codes (DCs) 7700, 7703 (1998) (providing the applicable rating criteria for leukemia in effect within the year after the Veteran's service). As leukemia is a chronic disease subject to presumptive service connection if manifested to a compensable degree within a year of separation from service, see 38 C.F.R. § 3.309, and the Veteran's death was clearly a direct result of his CLL, the Board finds that evidence of record supports a conclusion of a causal connection between the Veteran's death and service. Accordingly, the appellant's claim of service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. ORDER Service connection for the cause of the Veteran's death is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs