Citation Nr: 1332723 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-17 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for multiple myeloma and chronic renal failure for purposes of accrued benefits. 2. Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Rick D. Little, Agent ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1975. He died in August 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that denied the claims on appeal. At that time, the appellant's accrued benefits claim included a claim for service connection for prostate specific antigen (PSA). In an April 2011 decision, the Board denied service connection for cause of the Veteran's death, and service connection for multiple myeloma, chronic renal failure and PSA for purposes of accrued benefits. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). A November 2012 memorandum decision by the Court noted that the appellant had not challenged the claim for service connection for PSA for accrued benefits purposes, and that it would not address that claim further. The Court set aside the remainder of the April 2011 Board decision and remanded the matter for readjudication consistent with the decision. In doing so, the Court found that a July 2006 positive private medical opinion, discussed in detail below, was not speculative. The Court also noted that the Veteran's service treatment records documented a serious skin condition he developed as a result of working with chemical solvents. The accrued benefits issue is now before the Board for final appellate consideration. 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. FINDING OF FACT The competent clinical evidence and competent and credible lay evidence of record at the time of the Veteran's death demonstrates that the Veteran's multiple myeloma and chronic renal failure were related to active duty. CONCLUSION OF LAW The criteria for service connection for multiple myeloma and chronic renal failure for purposes of accrued benefits have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.1000 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In this case, the Board is granting the appellant's accrued benefits claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The appellant is seeking service connection for accrued benefit purposes for multiple myeloma and chronic renal failure. The appellant has argued that these disabilities were caused by the Veteran's military service, to include exposure to toxic chemicals. In his claim, the Veteran had argued that the claimed conditions were due to exposure to Agent Orange in service. Accrued benefits are benefits to which a Veteran was entitled at death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C.A. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The substance of the survivor's claim is purely derivative from any benefit to which the Veteran might have been entitled at his death; that is, the survivor cannot receive any such attributed benefit that the Veteran could not have received upon proper application therefore. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). In considering the appellant's claim for accrued benefits, generally, only evidence contained in the claims file at the time of the Veteran's death is evaluated. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the claims file until after that date. The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA, and reports of autopsy made by VA on date of death. Hayes v. Brown, 4 Vet. App. 353 (1993). The Veteran died in August 2006. At the time of his death, claims for service connection for multiple myeloma and chronic renal failure were pending. The appellant, the Veteran's surviving spouse, filed a claim of entitlement to accrued benefits in February 2007. As the appellant has standing to file a claim for accrued benefits, the Veteran had a claim pending at the time of death, and the claim for accrued benefits was filed within one year of the Veteran's death, the only issue is whether the Veteran would have prevailed on the claim if he had not died. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Evidence of record at the time of the Veteran's death included post-service medical treatment records showing that the Veteran had been diagnosed as having multiple myeloma and renal failure. Therefore, the first requirement for service connection for these claims, the existence of a current disability, is met. See Hickson, 12 Vet. App. at 253. The Veteran's DD 214 provides that his military occupation specialty was aircraft mechanic specialist. His service treatment records reflect that he was put on profile in August 1973 for contact dermatitis. His duty was restricted from any exposure to solvents. An October 1973 treatment record noted resolving contact dermatitis "probably [secondary] to solvents exposure at work." The report of an August 1975 separation examination noted a history of contact dermatitis of the hands from solvents. The appellant has submitted numerous articles, including some that document chemical contamination of Norton Air Force Base. The July 2006 statement from the Veteran's private physician, a hematologist and oncologist, provides that that "[t]here is supported evidence documenting the linkage of exposure to chemical agents ... that [the Veteran] was frequently exposed to while at Norton Air Force Base." The physician went on to state that it was "highly likely" that the Veteran's contact with those chemical agents may have contributed in causing his multiple myeloma and renal failure. The Board finds that this medical opinion, which was of record before the Veteran's death, supports the appellant's claim. The medical opinion demonstrates that it is at least as likely as not that the Veteran's multiple myeloma and renal failure were the result of exposure to chemicals during active duty. As a result, service connection for multiple myeloma and renal failure for purposes of accrued benefits is granted. ORDER Service connection for multiple myeloma and chronic renal failure for purposes of accrued benefits is granted. REMAND In light of the grant of service connection for multiple myeloma and chronic renal failure for purposes of accrued benefits, the Board finds that the appellant's claim for service connection for the cause of the Veteran's death requires additional development. The Veteran died in August 2006. The certificate of death provides that the cause of death was blunt force injuries. A Coroner Investigation report provides that the Veteran was a right front passenger in a van that was in a head on collision with an automobile. He was pronounced dead in the emergency room. Via her representative, the appellant argued in June 2008 correspondence that the medical examiners who investigated the Veteran's death stated that he would have survived the fatal motor vehicle accident (MVA) but for the emaciation caused by his multiple myeloma. She stated that at that point he was 6'3'' tall and weighed 119 pounds, due to his multiple myeloma. The November 2012 Court decision observed that the Board did not address the appellant's June 2008 contention or her contentions that a VA medical opinion was inadequate because it failed to address whether the Veteran's multiple myeloma was a contributory cause of the Veteran's death. The Court noted that on remand the Board would have the opportunity to address fully and further develop, if necessary, the claim for service connection for the cause of the Veteran's death. Since the appellant's June 2008 statement raises the possibility that the Veteran's death was related to his now service-connected multiple myeloma, the Board finds that a remand is necessary in order for the RO to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). In addition, the law requires that VA assist a claimant by providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's claims folder, and access to the electronic record before the Board, to an appropriate VA examiner. Request that the examiner provide a medical opinion, based on a review of all the evidence in the record, as to whether it is at least as likely as not (50 percent or more likelihood) that that the Veteran's service-connected multiple myeloma and chronic renal failure contributed to his cause of death; specifically, whether emaciation caused by the multiple myeloma made him unable to survive the trauma of his fatal MVA. The examiner must provide a rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Then, readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs