Citation Nr: 1538051 Decision Date: 09/04/15 Archive Date: 09/10/15 DOCKET NO. 08-01 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Brendan Garcia, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to November 1992, including in the Southwest Asia Theater of operations during the Persian Gulf War. He died in November 1999. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2009, the Appellant appeared at a hearing before a Veterans Law Judge. The hearing transcript has been associated with the file. In a decision in December 2009, the Board reopened the claim of service connection for the cause of the Veteran's death and remanded the claim. In April 2011, the Board again remanded the claim for further development. In July 2014, the Board denied the claim. The Appellant filed an appeal of that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2015, the Appellant's representative and VA General Counsel filed a joint motion for remand (JMR). The Court granted the joint motion that month, and, remanded the claim for further consideration consistent with the JMR. In June 2015, the Appellant was informed that the Veterans Law Judge who conducted the hearing was no longer employed at the Board and was offered the opportunity to appear at a new hearing. In June 2015, she declined the new hearing and requested that the claim be considered on the basis of the current record. FINDINGS OF FACT 1. The Veteran died in November 1999, and the cause of death listed on the death certificate was acute myelogenous leukemia (AML). 2. The Veteran's service-connected disabilities, residuals of surgery for pilonidal cyst and cervical spine strain, did not cause or contribute to the cause of the Veteran's death. 3. It is as likely as not that AML had its onset as a result of exposure to oil well fires during service. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). As the Board is granting service connection for the cause of the Veteran's death, the issue on appeal is substantiated, and there are no further VCAA duties with regard to that issue. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004). When a Veteran dies from a service-connected disability, the Veteran's surviving spouse is entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that a disability that was causally related to service caused death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires: (1) the existence of a disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including leukemia, a type of cancer, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). As noted in the 2014 Board decision, the Appellant does not argue nor is there competent lay or medical evidence that demonstrates that the service-connected disabilities caused or contributed materially to the cause of the Veteran's death. In addition, AML, first diagnosed six years after the Veteran's service, was not affirmatively shown to have had onset in service or within one year of service. The Appellant argues that the Veteran's AML, the cause of his death, was caused by his exposure to benzene and other toxins from oil well fires during service. Service treatment records do not demonstrate any complaint, finding, history, symptom, treatment, or diagnosis of a blood abnormality or of AML. After service, private medical records show that in November 1998 the Veteran, who had been in excellent health, presented to an emergency room with a two week history of nausea and vomiting, a 10 pound weight loss, a twenty-four hour history of a fever, and slight cough. The workup included a blood test that showed a white count of 65,000 and the diagnosis was acute leukemia. Initially, the Veteran was successfully treated with chemotherapy, but in May 1999 he had a rapid relapse. In July 1999, he had a second relapse and his condition became terminal. According to the death certificate, the Veteran died in November 1999 due to AML at the age of 33. An autopsy was not done and no other condition was listed as contributing to the cause of death. In December 2005, Dr. B.A.A. stated that the Veteran was exposed to multiple chemical agents during the Gulf War and the agents have been linked to hematological malignancies, including AML, and could have contributed to the Veteran's illness. In July 2006, Dr. C.N.B. opined that AML was as likely as not due to the Veteran's exposure to toxins to include benzene and organophosphates. In support of the opinion, Dr. C.N.B. explained that there were no other plausible risk factors for AML, AML was acquired at a young age, he was exposed to known AML carcinogenic agents while in the Gulf, and even intense short term exposure increases the odds for AML. The physician referred to two studies addressing occupational exposure dangers to petroleum workers and the hazards related to benzene exposure. In August 2009, the Appellant testified that the Veteran had headaches, kidney pain, colds, and coughs, which he never had before, as soon as he returned from the Gulf. In June 2011, the Assistant Secretary of Defense, citing a study by the U.S. Army Public Health Command, responsible for assessing the environmental health risk for deployed forces, namely, the Environmental Surveillance Integration Program, reported that the Veteran was in the Southwest Theater from October 1, 1990, to April 12, 1991. The report shows that during the time the Veteran was in the Southwest Theater, the oil well fires were burning for 70 days, the Veteran was within the boundaries of the oil fire smoke for six days, and that the Veteran had a low, calculated risk for developing cancer from the Gulf War oil fire smoke. In a January 2014 opinion, a VHA physician explained that it was highly atypical for a diagnosis of AML at the Veteran's age of 33 (only 4.7% of leukemia cases occur in age 20 to 34). The VHA physician stated that AML is a rapidly progressive cancer that comes to medical attention within weeks to a few months and, as such, the Veteran would not have been expected to have any symptoms of AML during or soon after deployment, but only a few months prior to the diagnosis in the fall of 1998, which occurred in the Veteran's case, and that the symptoms described by the Appellant prior to 1998 were suggestive of a chronic multisymptom illness, not AML, and that the Veteran's presenting symptoms in November 1998 were typical of symptoms experienced by patients presenting with AML. On the question of whether there was medical or scientific evidence to support a finding that AML was due to exposure to oil well fire smoke, the VHA expert stated that the pathogenesis of AML was not completely understood. Citing to several studies the VHA physician stated that the epidemiological evidence did not support an association between exposure to oil well smoke during the Persian Gulf War and AML. The VHA physician did note that it was not biologically implausible that exposure to oil well fire smoke may have contributed to AML, but the bulk of the epidemiological evidence failed to show a strong association between deployment in the Persian Gulf and the incidence of cancer. The VHA physician also noted that the current state of scientific evidence was recognized to be incomplete with many areas of uncertainty and the epidemiological data did not completely rule out the possibility that exposure to oil well smoke may have in the Veteran's case contributed to development of AML. This was especially true considering the Veteran's age when he was diagnosed, the absence of any other risk factors, and the recognized association between AML and exposure to chemicals such as benzene. In an addendum in April 2014 addendum, the VHA physician stated that the best epidemiological evidence, including the US Army Public Health Command report, did not support an association between exposure to oil well smoke during the Persian Gulf War and AML and that the risk of developing AML due to oil well fire exposure in this case would be nil. The VHA physician did recognize the uncertainties and limitations of the data that was the basis for US Army Public Health Command report as well as a biological plausibility. In the 2014 decision, the Board weighed the positive medical opinions of Drs. B.A.A. and C.N.B. against the negative opinions of the VHA physician and found that the weight of the evidence was against a finding of a nexus between the Veteran's exposure to oil well fires during service and his development of AML, leading to his death. However, in the February 2015 JMR, the parties agreed that the January 2014 VHA opinion and April 2014 addendum opinion were equivocal and internally inconsistent. In addition, the JMR found particularly important that the VHA physician stated that it is not biologically implausible that exposure to the oil well fire smoke contributed to some degree to the development of AML in the Veteran's case, that the epidemiological data does not completely rule out the possibility that exposure to oil well smoke may have contributed to the development of AML in this case, and that one should recognize the limitations of this data weighing against a finding of a nexus given the "biological plausibility arguments" detailed in the original opinion. Considering the JMR conclusions regarding the inadequacy of the negative VHA opinion and addendum, and upon further review of the evidence in favor of the claim, the Board concludes that the weight of the evidence is in favor of a finding of a nexus between the Veteran's in-service exposure to oil well fire toxins and his development of AML, which led to his death. While his risk of developing cancer was determined in the US Army study to be low given the amount of time he was exposed to the toxins, the fact that there were no other plausible risk factors for AML, that AML was acquired at a young age, that he was exposed to known AML carcinogenic agents while in the Gulf, and that studies demonstrate that even intense short term exposure increases the odds for AML was particularly persuasive to Dr. C.N.B. and is persuasive to the Board. Even the VHA examiner noted that the current state of scientific evidence was recognized to be incomplete with many areas of uncertainty, particularly given facts such as in the Veteran's case, and did not completely rule out the possibility of a link between the Veteran's service and his death. The Board finds that in this case, there is reasonable doubt as to the connection between the Veteran's service-connected exposure to toxins from oil well fires and his development of AML, which led to his death. Resolving all doubt in the Appellant's favor, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs