Citation Nr: 1424137 Decision Date: 05/29/14 Archive Date: 06/06/14 DOCKET NO. 10-45 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1977. The appellant is the surviving spouse of the Veteran. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine which denied the appellant's claim. In June 2011, the Veteran presented sworn testimony at a videoconference hearing which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board has reviewed the Veteran's claims folder as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran died in June 2008; his death certificate lists the cause of death as multiple myeloma, with additional causes including dehydration and hypercalcemia. Other significant conditions contributing to death included adult-onset diabetes mellitus, pneumonia, and chronic renal insufficiency. 2. The competent and probative evidence of record is in equipoise as to whether the Veteran's fatal multiple myeloma was related to his military service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for the cause of the Veteran's death. In the interest of clarity, the Board will address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed in more detail below, sufficient evidence is of record to grant the appellant's claim of entitlement to service connection for cause of the Veteran's death. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Analysis In this case, the appellant, who is the Veteran's surviving spouse, contends that the Veteran's death from multiple myeloma was the result of in-service events, in particular exposure to herbicides at Andersen Air Force Base in Guam as well as exposure to petroleum products such as jet fuel and aircraft cleaning compounds. She further contends that the Veteran's fatal multiple myeloma was related to exposure to benzene when he worked as an electrical warfare's officer of a strategic B-52G Bomber cell actively engaged in air combat and ground support operations over Vietnam. The Veteran died in June 2008; his death certificate lists the cause of death as multiple myeloma, with additional causes including dehydration and hypercalcemia. Other significant conditions contributing to death included adult-onset diabetes mellitus, pneumonia, and chronic renal insufficiency. In order for service connection for the cause of a veteran's death to be granted, three elements must be present: (1) evidence of death; (2) evidence of in-service incurrence of disease or injury; and (3) nexus evidence linking (1) and (2). Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, element (1) has obviously been met. With respect to element (2), the Veteran's service department records do not indicate that the Veteran served in the Republic of Vietnam, or otherwise confirm exposure to herbicides during service. However, the Veteran's service personnel records verify that he served as a transportation officer and that he completed a B-52 electronic warfare officer central flight instructor's course. Exposure to jet fuel, to include benzene, as well as aircraft cleaning compounds is therefore presumed. Element (2) is therefore satisfied. With respect to element (3), nexus, for reasons expressed immediately below, the Board finds that the medical evidence in this case is in equipoise as to whether the Veteran's cause of death, specifically his multiple myeloma, is related to in-service exposure to benzene. In March 2014, due to the complexities of the medical issues involved, the Board, pursuant to 38 C.F.R. § 20.901 (2013), requested a VHA opinion from an oncologist to address whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's cause of death, to include multiple myeloma, is related to his military service, to include presumed exposure to benzene and other chemicals contained in jet fuel as well as aircraft cleaning compounds. In response to the VHA opinion request, L.S., M.D., an oncologist, submitted a medical opinion dated April 2014. She noted that one book which analyzed studies looking at fuels and myeloma found no increased risk. However, she reviewed a medical journal article which found "a significant excess in relative risk of myeloma in patients exposed to benzene." Furthermore, she reviewed another medical journal article which found that "There is strong evidence linking high levels of exposures to benzene with the increased risk of [acute myeloid leukemia]. In contrast, there is no scientific evidence to support a causal relationship between exposure to benzene or other petroleum products and the risk of developing multiple myeloma." Based on her review of conflicting data, Dr. L.S. concluded that it is as likely as not that the Veteran's cause of death from multiple myeloma is related to his military service and exposure to benzene. The opinion of Dr. L.S. was based upon thorough and thoughtful analysis of the Veteran's entire medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Given a medical opinion that concluded that the Veteran's fatal multiple myeloma was at least as likely as not related to his military service, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's fatal multiple myeloma was related to his military service. The Board also notes that there is no medical opinion of record which suggests that the Veteran's cause of death was not related to his military service. The Board therefore finds that the benefit of the doubt rule is for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). As such, element (3), and thereby all three elements, has been satisfied. In summary, for reasons and bases expressed above, the Board concludes that service connection for the cause of the Veteran's death is warranted. The benefit sought on appeal is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs