Citation Nr: 1515238	
Decision Date: 04/08/15    Archive Date: 04/21/15

DOCKET NO.  97-27 041A	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUES

1. Entitlement to service connection for leukemia for accrued benefits purposes.

2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits on the basis of service connection for the cause of the Veteran's death.

3. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151.


WITNESSES AT HEARING ON APPEAL

Appellant, J.H.

ATTORNEY FOR THE BOARD

M. R. Harrigan Smith, Counsel
INTRODUCTION

The Veteran served on active duty in the military from February 1966 to August 1968. He also had prior service in the Marine Corps Reserves. He died in April 1997. The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

The Board originally denied the appellant's claim in August 1999. She appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The appellant was represented by an attorney at that time.

The Board's decision was vacated by order of the Court in August 2000 and returned to the Board for further action. The appellant's attorney maintained his representation in the case from that time until he submitted notice of his withdrawal as the appellant's representative in May 2012.

The appellant was informed that her case was being forwarded to the Board on May 15, 2012. She was further informed that she had 90 days to seek new representation, request a hearing or submit additional evidence. The appellant submitted additional argument and evidence to the Board that was received in June 2012. She stated that she had not found a new representative.

This case was remanded most recently in August 2012.  It is again before the Board for additional appellate review.

The Board notes that the arguments and evidence submitted to the Board since the most recent supplemental statement of the case was issued are duplicative of argument previously raised by the appellant and evidence submitted by her. Therefore, there is no requirement to seek a waiver of consideration of the submission by the agency of original jurisdiction (AOJ) in the first instance.  See generally 38 C.F.R. § 20.1304 (2014).


FINDINGS OF FACT

1. The Veteran had active service in the Republic of Vietnam during the Vietnam era from July 1967 to July 1968.

2.  At the time of the Veteran's death, there was a pending claim of service connection for leukemia.

3.  The evidence of record at the time of the Veteran's death does not link leukemia to military service. 

4.  The cause of the Veteran's death in April 1997 was listed on his death certificate as respiratory failure due to or as a consequence of adult respiratory distress syndrome with an unknown etiology; final autopsy results were pending. Chronic myelogenous leukemia (CML) on induction chemotherapy was listed as a significant condition contributing to death but not resulting in the underlying cause.

5.  An April 1997 autopsy report noted that the major underlying pathology surrounding the Veteran's death was chronic myeloid leukemia, and that the leukemia contributed to the Veteran's pericardial and pulmonary hemorrhage, probably contributed to the mucosal hemorrhage of the urinary bladder, and that the spleen showed evidence of involvement by chronic myeloid leukemia. The report indicated that the cause of death was attributed to cardiopulmonary failure with the lungs playing the major contributing role.

6.  An updated death certificate, issued in December 1997, listed the Veteran's cause of death as respiratory failure due to or as a consequence of adult respiratory distress syndrome due to or as a consequence of chronic myelogenous leukemia.

7.  At the time of the Veteran's death, service connection was in effect for malaria, rated as a noncompensable disability.

8.  Respiratory failure, adult respiratory distress syndrome, cardiopulmonary failure, and chronic myelogenous leukemia began many years after service, and none of the conditions was caused or made worse by the service-connected malaria.

9.  The service-connected malaria did not substantially or materially contribute to the Veteran's death.

10.  The Veteran's death was not caused by or otherwise related to any VA hospitalization, surgical or medical treatment.


CONCLUSIONS OF LAW

1.  Service connection for CML for accrued benefits purposes is not warranted.  38 U.S.C.A. §§ 1101, 1131, 5121 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (1996).

2.  Service connection for cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2014).

3.  The Veteran's death was not due to VA hospital care, or medical or surgical treatment.  38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 3.358, 3.800 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Lastly, the Board observes that in Hupp v. Nicholson, 21 Vet App 342 (2007) the United States Court of Appeals for Veterans Claims (Court) expanded the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements for a DIC claim. In Hupp, supra, the Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a Veteran was service-connected for a disability during his or her lifetime.  The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected.  In addition, the Court found in Hupp that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the Court held in Hupp that the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted.

The Board notes that the initial unfavorable decision in this case was issued prior to the enactment of the VCAA.  The appellant was provided with notice in September 2004 and October 2009 that, collectively, met all the notice requirements set out above.  These letters notified the appellant of the evidence VA would assist her in obtaining and the evidence it was expected that she would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  This letter also informed him of the types of evidence that would be considered to substantiate her claims and the information and evidence needed to sustain a claim for service connection.  In addition, the letter met the notice requirements set out in Dingess and Hupp. 

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board notes that while these notice letters were provided after the initial unfavorable rating decision in this case, the issues were then readjudicated most recently in a September 2014 supplemental statement of the case.  

Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998).  This case has been remanded by the Board several times.

The Board initially denied the appellant's DIC claims in August 1998; she appealed the Board's denial to the Court.  The Court granted a joint motion for remand in August 2000 and returned the case to the Board. Thereafter, to comply with the directives of the joint motion, the Board remanded the case to the RO for additional development, to include requesting evidence from the appellant, obtaining additional VA treatment records and scheduling the appellant for a hearing before a member of the Board.

The RO contacted the appellant in June 2001 and requested that she provide additional evidence in support of her claim.  However, no response was received to the RO's request.  The Veteran's medical chart from the VA medical center (VAMC) in Wichita, Kansas, was obtained and associated with the claims folder. Finally, the appellant was afforded a Board hearing in December 2001.  The Board notes that the appellant's representative was not in attendance at the hearing. However, the appellant submitted a letter from her representative that advised that he would not attend the December 2001 hearing. He advised the appellant that she could proceed on her own if she chose to do so. The appellant, and a witness, presented testimony at the hearing. No request for postponement was made by the appellant or her representative.

The Board again denied the appellant's claims in May 2005.  The appellant appealed the decision to the Court, and in a September 2003 Order, the Court granted a joint motion for remand and returned the case to the Board.  Pursuant to the instructions in the Court's joint remand, in September 2004, the Board provided the appellant with complete notice under the VCAA regarding her claims.  

In a June 2006 decision, the Board again denied the appellant's claims. In a June 2008 order, the Court vacated and remanded the Board's June 2006 decision. The Court found that it was error for the Board to have adjudicated the DIC claims without ensuring that the appellant's accrued benefits claim was adjudicated prior to making a decision on her DIC claim. 

In October 2009, the Board remanded the case in order to provide the appellant with appropriate notice for her accrued benefits claim, and for the RO to adjudicate the pending accrued benefits claim before it was returned to the Board.  The appellant was provided with the appropriate notice for her accrued benefits claim in October 2009.  In June 2010, the RO denied the accrued benefits claim.

In April 2011, the Board again remanded the claim, noting that the time period for the appellant to file a notice of disagreement had not yet run, and that as the claims were inextricably intertwined, the case should be returned until the appellant was given the opportunity to file a timely notice of disagreement.

The case was remanded again in August 2012 in order to obtain a VA opinion as to whether the Veteran's leukemia was directly related to service.  DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008).  The VA opinion was provided in December 2014.  

The Board finds that the VA opinion is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

Post-service private medical records and VA examination reports have been associated with the claims file.  The Board has reviewed these records to establish if any other medical evidence relevant to the Veteran's claim exists and has determined that all relevant medical evidence has been associated with the record.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  

Background

The Veteran served in the Marine Corps Reserve from June 1963 to February 1966. He subsequently had active service in the Marine Corps from February 1966 to August 1968. A review of his service medical records (SMRs) for the period from April 1963 to August 1968 is negative for any diagnosis of or treatment for leukemia. The SMRs do reflect treatment for malaria and pneumonia in April and May 1968. The Veteran was discharged from the hospital in May 1968 and returned to full duty. An August 1968 separation physical examination reported a high frequency hearing loss in the left ear as the only abnormality. There were several scars noted but these were reported on earlier physical examination reports, prior to the Veteran's period of active duty.

The Veteran was hospitalized at a VA facility in January 1969. He was treated for malaria. A discharge summary for that period of hospitalization noted that he was discharged as asymptomatic after five days of treatment. A September 1970 examination report from a J. Cappelletti, M.D., lists complaints of residuals of malaria and attacks of abdominal pain, usually after eating. The physical examination was essentially negative. The report provided no specific diagnosis and noted that the patient was reassured at the end of the examination.

Later VA records show that the Veteran was seen in acute care at the Wichita VAMC on January 31, 1997, with a number of complaints, primarily weakness and tiredness. Laboratory studies were done which revealed a high white blood cell count. The Veteran was admitted for further study and treatment. The initial assessment, as recorded on a January 31 history and physical examination report, was severe leukocytosis, probably secondary to underlying leukemia, anemia, probably secondary to underlying leukemic process and generalized weakness secondary to anemia. A bone marrow aspiration in preparation for a bone marrow biopsy (BMB), and blood transfusions were done as initial treatment steps. A form used to obtain information on admission, Interdisciplinary Initial Assessment and Data Base, was completed on January 31. The form was comprehensive in its questions and addressed all body systems. In one question, the Veteran indicated that he had prostate problems. There was no further discussion of this answer on the form, or in the hospital records.

The medical chart contains the consent form for the bone marrow aspiration on January 31. The purpose was noted to draw bone marrow for diagnosis. The pathology report, with the results of the BMB, confirmed by a second opinion, was provided on February 5. The report revealed that the findings supported chronic myelogenous (granulocytic) leukemia (CML), and noted that the clinical diagnosis at the time of the aspiration in January 1997 was acute leukemia.

The Veteran was initially evaluated by Dr. C., a non-VA oncologist affiliated with the Wichita VAMC, on February 5. Dr. C. ordered a second BMB for cytogenetic testing for the Philadelphia chromosome. He noted that the current findings were consistent with CML. A second bone marrow sample was obtained on February 6, and was submitted for testing.
The Veteran was discharged on February 6, to be followed by Dr. C. as an outpatient. A patient education record indicates that the Veteran was instructed on CML and chemotherapy on the date of discharge. The discharge summary noted that the Veteran felt better after his transfusions. He was able to ambulate in the hospital and got around well. The summary also noted that Dr. C. talked with the Veteran at length about finding a treatment and bone marrow donor for a future bone marrow transplant.

An outpatient treatment entry from Dr. C., dated February 12, noted that the Veteran had probable CML, pending cytogenetic tests. The Veteran was noted to feel well but had not been started on Hydrea, as the Veteran was concerned about side effects. The Veteran was seen again by Dr. C. on February 19. He was reported to feel well and was started on Hydrea, 500 milligrams (mg) per day. The Veteran was infused with packed red blood cells (PRBCs) on February 20. He was seen as an outpatient again on February 26, complaining of diarrhea of a couple of days, and fatigue. The results of the cytogenetic testing of the February 6 BMB were received on March 4. The results indicated that the Philadelphia chromosome was not present in the Veteran's bone marrow. Dr. C. saw the Veteran on March 5 and noted that he was tolerating the Hydrea well. The dosage was increased to 500 mg twice a day.

An entry dated on March 11 noted that the Veteran might be eligible for 'protocol MD Anderson (MD Anderson Cancer Center, Houston, Texas) 95-033.' The entry reported that several items were required in order to register. The first was that the Veteran had to be off of his Hydrea for two weeks and would need a BMB as soon as possible with cytogenetics two weeks prior to registering. Several additional items were noted to include placement of a central line catheter. Dr. C. saw the Veteran on March 12. He noted that the Veteran reported feeling fatigued. The assessment was chronic myelomacrocytic leukemia (CMML). The Veteran's Hydrea was to be discontinued for two weeks.

The Veteran was seen again by Dr. C. on March 19.  The Veteran reported feeling well.  He had had a febrile reaction to his last blood transfusion but no fever since then. Dr. C. noted that the Veteran had poor dentition and that a dental consultation was required prior to commencing chemotherapy. Dr. C. prepared a surgical consultation that same day requesting placement of a Hickman Catheter (to allow for administration of chemotherapy). He also prepared a dental consultation. The Veteran was scheduled to receive another blood transfusion on March 21. The dental consult and an outpatient entry both noted that the Veteran declined a dental evaluation on March 20 and would notify the clinic when he wanted to return for the evaluation. A final outpatient entry, dated March 21, noted that the Veteran did not report for his transfusion. Attempts to contact him were unsuccessful and he was expected at his next appointment on March 26.

The Veteran was then admitted to the Wichita VAMC on March 22. The initial history and physical examination noted that he presented with complaints of weakness and shortness of breath with pleuritic chest discomfort. The Veteran was noted to be off of medications in anticipation of participation in a specific treatment protocol. The initial assessment was of right lower lobe infiltrate, CML, anemia secondary to leukemia, pleuritic chest pain likely secondary to the infiltrate that could be pneumonia versus leukemic, mild hyponatremia, and hypoxia.

A doctor's progress note from March 22 noted that several actions were ordered to include restarting Hydrea, 1000 mg, every eight hours. The Veteran's condition deteriorated such that he was transferred to the intensive care unit. A review of the discharge summary for this period of hospitalization shows that the Veteran was given intensive treatment throughout his period of hospitalization as multiple medical problems were confronted as a result of the Veteran's leukemia. Dr. C. evaluated the Veteran on March 24. He identified the Veteran's disease as CMML but noted that the Veteran's bone marrow was consistent with CML except that there was no Philadelphia chromosome. Dr. C. noted that the Veteran had cardiomegaly and pulmonary infiltrate, and effusion. He recommended that the Veteran be given ARA-C and Daunomycin. A catheter was placed that same day and the recommended drugs started on March 25. The Veteran continued to experience increasing respiratory difficulties and was intubated on March 25. A bronchoscopy with broncho-alveolar lavage was also performed on March 25. Chest x-rays and computerized tomography (CT) studies of the chest documented marked to moderate degree of pericardial effusion. Pericardiocentesis was performed, with proper authorization, on March 26. Subsequent chest x-rays did not show any evidence of a collapsed lung and there was no indication of any type of heart damage. A second bronchoscopy was to be attempted but was not done due to pulmonary hemorrhaging. As the summary indicates, despite continued efforts by the medical personnel, the Veteran's condition continued to decline and he died in April 1997.

In February 1998, Dr. C. submitted a 'note' regarding the treatment provided to the Veteran and requested that it be included in his Wichita VAMC medical chart. It was noted that, when the Veteran was seen by Dr. C. it was initially thought that the Veteran had CML because of splenomegaly, anemia, thrombocytopenia, and leukocytosis. A BMB was pending at the time. Dr. C. said that he had wanted to start the Veteran on Hydroxyurea but the Veteran was hesitant because of side effects. Hydrea was started on February 19. Dr. C. reported that the Veteran was seen on March 5 and his Hydrea was increased to 1000 mg. The Veteran was considered for the MD Anderson protocol but would have to be off the Hydrea for two weeks so this was discontinued (on March 12). Dr. C. noted that the Veteran was given three units of PRBCs on March 12. He was also noted to have a pre-leukemic condition rather than CML because the Philadelphia chromosome was absent. He noted the final outpatient visit on March 19 and his consultation in the hospital on March 24 with the subsequent initiation of chemotherapy.

Finally, Dr. C. entered a note in the chart in July 2000 wherein he stated that he treated the Veteran several years earlier. Initially the Veteran had a bone marrow that showed a blood dyscrasia compatible with CML. He was started on Hydroxyurea for this. Subsequently a bone marrow examination showed abnormal cytogenetics but no Philadelphia chromosome. This ruled out a diagnosis of CML. He said the Veteran had a myelodysplastic syndrome, CMML. He noted that the Veteran was later hospitalized with a probable evolution of the disease to acute myelogenous leukemia. The Veteran received standard induction chemotherapy but died soon after the treatment was started.

In April 1997 the appellant submitted a copy of the Veteran's death certificate. The certificate reported that the Veteran died in April 1997 at the Wichita VAMC. The cause of death was listed as respiratory failure due to or as a consequence of adult respiratory distress syndrome with an unknown etiology. Final autopsy results were pending. CML on induction chemotherapy was listed as a significant condition contributing to death but not resulting in the underlying cause.

In July 1997, the appellant submitted a copy of a June 1997 VA autopsy report. The autopsy was conducted in April 1997. The report noted that the Veteran carried a diagnosis of CML. The report contained detailed findings regarding the different bodily systems that were examined. The examiner provided the following comment:

The major underlying pathology in this patient is chronic myeloid leukemia. I feel the leukemia contributed to the patient's pericardial and pulmonary hemorrhage and probably contributed to the mucosal hemorrhage of the urinary bladder. The enlarged spleen (1025 gm) showed involvement by chronic myeloid leukemia and evidence of extra medullary hematopoieses. The cause of death is attributed to cardiopulmonary failure with the lungs playing the major contributing role. The septal edema suggests hypotension or shock in this patient.

VA Autopsy Protocol, dated in June 1997, p. 5.

A letter from the appellant to her Congressman, notes that the Veteran was first diagnosed with, and treated for leukemia on January 31, 1997. The appellant said that she and her husband were first told that it was acute leukemia and then told that the disease was CML with chemotherapy and a bone marrow transplant as the appropriate course of treatment. She noted that his VA physicians asked the Veteran if he had a history of cancer in his family and he did not. The Veteran was also asked if he had worked around herbicides. He had not, but had served in Vietnam for approximately one year. She stated that a VA physician told them that the Veteran's leukemia was due to his exposure to herbicides in Vietnam and was entering this conclusion in the Veteran's medical chart. The appellant also related a discussion with another VA physician regarding the specifics regarding the diagnosis of the Veteran's disease. Initially the disease was believed to be CML but that the results of a bone marrow biopsy were negative for what is known as the Philadelphia chromosome. The VA physician told them this meant that the leukemia might be CMML. She said this latter diagnosis was confirmed in March 1997 and a course of chemotherapy was to be given and another bone marrow biopsy was required. She said that they questioned the need for another bone marrow biopsy and questioned which drugs would be used for the chemotherapy. Finally, she stated that she wanted the Veteran's leukemia to be added to the list of diseases related to exposure to dioxin and be granted service connection for the Veteran's death.

The appellant submitted a statement to the RO, also in July 1997, in which she contended that the Veteran's leukemia was not diagnosed in a timely manner. She also stated that the Veteran's leukemia had been misdiagnosed and she questioned whether he had been given proper treatment.

The appellant testified at a hearing before RO personnel in October 1997. She acknowledged that all of the Veteran's treatment for his leukemia had been received at the Wichita VAMC and that the records were included in the claims folder. She said that she had been contacted by the VA physician that originally signed the Veteran's death certificate and was informed that the death certificate needed to be changed to reflect that leukemia was the cause of death. She said the Veteran had a BMB on January 31 and that they were originally told that the Veteran's diagnosis was acute leukemia but later this was changed to CML. The appellant reported that the Veteran had a second BMB performed on February 6, 1997. She testified that the Veteran was discharged from the hospital that same day, and that no specific therapy was started for his leukemia at that time.

After his discharge he continued to see a VA specialist, Dr. C., on a weekly basis. The appellant testified that they were informed by Dr. C. on March 12, 1997, that the BMB was negative for the Philadelphia chromosome. She said Dr. C. ruled out CML as the type of leukemia. Dr. C. told them at a March 19 appointment that the diagnosis was CMML. The appellant testified about her research on the various treatment protocols for leukemia. She said that a bone marrow transplant is used for CML, and that the Veteran was not able to receive that treatment at the time because he would have had to have stopped smoking. (Transcript p. 7). The appellant stated that treatment for CMML consisted of chemotherapy, and that this was not started immediately because the Veteran required a dental evaluation. She said the Veteran was also taken off his medication, Hydrea, at that time and that he felt better when he was taking the Hydrea. The appellant also reported that Dr. C. also wanted to do another BMB on March 19 but did not explain why. She said that, after the March 19 appointment, the Veteran felt that the VA doctors did not know what he had for a disease. No special treatment was started at that point.

The appellant further testified that she brought the Veteran back to the Wichita VAMC on March 21, 1997, because he was feeling bad, and could barely walk. He was evaluated and then admitted. He was later moved to the intensive care unit (ICU) when she was at home. The appellant noted that the Veteran was not on chemotherapy at that time. He had refused chemotherapy on March 19 because he felt the drugs were very strong and he was not ready to submit to that treatment. (Transcript p. 13). When the appellant was asked which type of leukemia caused the Veteran's death, she replied she was told that it was CML. She said that the proper treatment for CML was a bone marrow transplant. She further opined that if VA had proceeded with that treatment, or had made the right diagnosis sooner with the proper treatment, it would have possibly prolonged the Veteran's life. The appellant further testified regarding the Veteran's original period of hospitalization in February 1997. She said a VA doctor came into the room and questioned the Veteran about a family history of cancer and whether the Veteran had been exposed to pesticides of herbicides. The Veteran did not have a family history of cancer but informed the doctor of his service in Vietnam. The appellant said the VA doctor was going to write down Agent Orange exposure in the Veteran's chart. She said that all of the VA doctors on the Veteran's treatment team felt that his leukemia was due to exposure to Agent Orange. (Transcript p. 16).

In December 1997, the appellant submitted a number of items in support of her claim. One item was an updated copy of the death certificate. The amended death certificate was issued in December 1997. It still listed respiratory failure as the immediate cause, due to or as a consequence of adult respiratory distress syndrome. However, CML was also listed as a cause, after adult respiratory distress syndrome. VA treatment and hospital records were also submitted. She included an extract of medical literature, which discussed what CML is, how it is diagnosed and how it is treated. She included extracts from the published results of a 1996 study that specifically addressed leukemia.

In March 1998, the RO received a statement from the Chief of Staff of the Wichita VAMC. The Chief of Staff stated that the Veteran was neither misdiagnosed nor improperly treated. Included with the Chief of Staff's statement were two supplemental reviews. The first was from a quality management (QM) specialist nurse, dated in January 1998. The QM specialist noted that two BMBs were obtained, one in January and one in February 1997, respectively. She noted that the February 6, 1997, discharge summary noted that the examined cells were consistent with CML. The summary noted that the biopsies were obtained to first look for the presence of the Philadelphia chromosome which would confirm a diagnosis of CML; and secondly to obtain cells for a possible bone marrow match as a future course of treatment. The QM specialist reviewed Dr. C's notes from February 6 to March 19, 1997. It was noted that the second biopsy did not note the presence of the Philadelphia chromosome. Additional comments were made based on medical record entries. One of the specialist's conclusions was that the Veteran appeared to have received appropriate medical diagnosis and treatment.

The second supplemental review was from Dr. C., and dated in February 1998. Dr. C. stated that the Veteran was found to have a bone marrow malignancy. The Veteran was seen in February 1997. He was given blood transfusions and started on Hydroxyurea (Hydrea). A BMB was done because it was felt that the Veteran's disease was consistent with CML. The results of the BMB were consistent with CMML, which Dr. C. described as an incurable pre-leukemic condition. He noted that the Veteran was treated until March 19, 1997, when it was noted that his disease had progressed. He was referred for evaluation prior to chemotherapy and placement for a Hickman catheter. The Veteran was subsequently admitted to the Wichita VAMC on March 22, 1997. He was started on an acute leukemia-type regimen with Daunomycin and Cytarabine (ARA-C), but his condition continued to deteriorate and he suffered respiratory failure. He stated that the adverse event (death of the Veteran) was not preventable and there were no errors that led to the adverse event. He said that the root cause of the Veteran's death was the Veteran's leukemia.

The appellant submitted a letter in support of her claim in June 1998. In particular, she said that Dr. C. told her and the Veteran that treatment for the leukemia was Hydroxyurea, which seemed to help the Veteran. She added that Dr. C. asked the Veteran to stop taking the Hydroxyurea, which was prescribed to treat CML. The appellant said that Dr. C. ruled out CML and said that the Veteran had CMML, despite the entry on the death certificate. She felt that the misdiagnosis of the Veteran's leukemia was inaccurate due to human error and inaccurate test results. She again questioned Dr. C's diagnosis of CMML and a request for a third BMB. The appellant stated that the Veteran's health deteriorated after he discontinued taking the Hydroxyurea. She concluded by saying that she felt a wrong diagnosis was made and this resulted in the wrong treatment being given. This, in turn, led to her husband's death when a proper diagnosis and proper treatment could have kept him alive longer.

In March 1999, the Board obtained an opinion from the Chief of Staff at the VAMC in Tampa, Florida. The physician noted that he had reviewed the claims folder. He noted that the reference to induction chemotherapy on the death certificate referred only to a re-initiation of chemotherapy that had been temporarily discontinued as part of a plan to refer the Veteran to a cancer center for an experimental protocol. He noted that Hydrea was discontinued on March 12, 1997, in preparation for participation in the protocol, but was restarted on March 23, 1997, after the Veteran's condition deteriorated. The physician noted that the Veteran did not respond to his treatment and died in April 1997. The physician opined that the Veteran died as a result of his neoplastic disease.

The appellant and J.H. presented testimony at a hearing convened at the RO on December 7, 2001. The appellant testified that she felt the Veteran's medical records showed that he complained of his legs feeling like rubber in service and that he complained of the same thing at the time he was diagnosed with leukemia. She testified as to her awareness of the different diseases that have been shown as linked to exposure to Agent Orange, including certain respiratory problems, and that the Veteran died of respiratory failure. The appellant reported how she had to give consent for a procedure to drain fluid away from the Veteran's heart. She stated the second time this was done did not go well, and that VA ruptured the Veteran's heart and his left lung collapsed.

The appellant also testified regarding the different diagnoses of CML and CMML and how Dr. C. took the Veteran off of his Hydrea medication even though the Veteran felt better when he was taking it. The appellant also testified that she was told by one of the VA doctors that the Veteran did not just have leukemia but had a number of cancers in his body. (Transcript p. 8.). The appellant and J.H. also testified that Dr. G., another VA physician, wrote down in the bedside chart that the Veteran's leukemia was due to exposure to Agent Orange. J.H. said that the Veteran had prostate problems. The appellant testified that the Veteran had all the symptoms of prostate cancer and that he was passing blood through his urine. The appellant acknowledged that there was no diagnosis of prostate cancer. J.H. recounted how the Veteran had told her that, since his return from Vietnam, that his legs had always felt like rubber and that he had tried to work out and stay in shape to stay healthy.

The appellant testified that the autopsy included a third BMB that indicated that the Veteran's leukemia was CML and not CMML. She opined that if he had continued with his Hydrea medication the Veteran could have lived another 10 or 15 years. The appellant repeated her assertion that a VA physician had told them that the Veteran had other cancers. She said she had never learned what cancers. She had asked for a copy of the Board's consultant report and a copy of the Veteran's 'bed charts' but had never received either.  (Transcript p. 12). The appellant further testified regarding the treatment for the fluid around the Veteran's heart and her opinion that his urine looked as if there was metal in it.

In April 2002, a VA examiner noted that he had received a call from the appellant about the Veteran's death certificate.  The appellant had asserted that the Veteran's CML/CMML was due to Agent Orange exposure.  The examiner noted that it had not been determined that there was an association between Agent Orange exposure and CML, CMML.  The appellant also contended that the Veteran's death was due to a pneumothorax from procedures; however, the examiner found that there was no evidence of this at the Veteran's autopsy.  The appellant additionally argued that the Veteran died from a shrapnel embolism from leg wounds from Vietnam.  It was noted that she also objected to the CML diagnosis, although it was the official autopsy report diagnosis.  The examiner reviewed the death certificate and the autopsy report again, and indicated that a statement had been added that the Veteran had CMML that probably evolved into AML.  The examiner found no reason to again amend the death certificate based upon information from the pathologist.

A VA opinion was obtained in March 2012 in order to clarify the difference between CML and Hairy Cell leukemia.  The examiner indicated that CML was a cancer of the white blood cells. The examiner noted that CML was a form of leukemia characterized by the increased and unregulated growth of predominantly myeloid cells, in the bone marrow and the accumulation of these cells in the blood.  Hairy cell leukemia was a rare, slow-growing, cancer of the blood in which bone marrow makes too many B cells (lymphocytes), a type of white blood cell that fight's infection.  Under the presumptive conditions for Agent Orange exposure included types of leukemia are chronic lymphocytic leukemia and other chronic leukemias affecting B-cells such as hairy cell leukemia.  The examiner stated that B cell leukemias included B-cell chronic lymphocytic leukemia/small lymphocytic lymphoma, acute lymphoblastic leukemia, mature B-cell type, B-cell prolymphocytic leukemia, Precursor B lymphoblastic leukemia, and hairy cell leukemia.  The examiner noted that he had consulted with a VA oncologist, and determined that CML is not part of the line of B-cell leukemias.

A VA opinion was obtained in September 2014.  The examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The Veteran was diagnosed with CML and died from complications of it in 1997.  Review of the service treatment records and complete claims file revealed no possible causative factor for CML. Conceded herbicide exposure for being in Vietnam is not associated with development of CML. CML occurs with aging predominantly past age 60 but does also occur in earlier middle age. Only known possible association for causing CML otherwise is large doses of radiation. Other possible associations in research that have been noted is that it tends to occur more often in males and with prior chemotherapy.  No large doses of radiation, or chemotherapy were noted to occur on active duty.  There is no link with herbicides or other chemicals to the development of CML. No other chemical exposure or other factors related to his active duty service or service including herbicide exposure is linked to the development of CML.

Analysis

Accrued Benefits

Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.  While an accrued benefits claim is separate from a Veteran's claim filed prior to death, the accrued benefits claim is derivative of the Veteran's claim; thus, an appellant takes the Veteran's claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996).  For a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of her death for such benefits or else be entitled to them under an existing rating or decision.  Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).

A "claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death.  38 C.F.R. § 3.1000(d)(5). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by VA. 38 C.F.R. § 3.157(b)(1)-(b)(3).  Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identifies the benefit being sought.  38 C.F.R. § 3.155(a); see Brannon v. West, 12 Vet. App. 32, 34 (1998).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

A current disability must be present for a valid service connection claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998).  The United States Court of Appeals for Veterans Claims (Court) has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McLain v. Nicholson, 21 Vet. App. 319 (2007).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence').

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In February 2007, the Veteran filed a claim for service connection for leukemia due to exposure to herbicides while on active duty in Vietnam.
 
The Veteran died in April 2007.  The appellant filed an application for accrued benefits that same month.  The application was received within one year after the date of the Veteran's death; thus, it was filed in a timely manner.  See 38 C.F.R. § 3.1000. 

At the time of the Veteran's death, the record included the following evidence.  Service treatment records reflected treatment for malaria and pneumonia.  Post-service VA medical records showed that the Veteran was treated for malaria in January 1969 and September 1970.  The Veteran was seen beginning in January 1997 for symptoms of weakness and tiredness.  He was diagnosed with acute leukemia that same month.  The findings were consistent with CML.  Records reflect that he was provided with ongoing treatment until his death in April 1997.  

Service treatment records did not reveal any treatment for or diagnosis of leukemia.  The first record of treatment for symptoms associated with leukemia was dated in January 1997, over 30 years after service.  There was no medical evidence in the record at the time of the Veteran's death linking his leukemia to any incident of service, including any exposure to herbicides.  The Board notes that such a determination is complex in nature.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. Brown, 7 Vet. App. 134, 137 (1994). 

With regard to presumptive service connection, at the time of the Veteran's death in April 1997, no form of leukemia was listed as a disease that could be considered for presumptive service connection based on herbicide exposure. See 61 Fed. Reg. 41,422-41,449 (Aug. 8, 1996) (Presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era not warranted for, inter alia, leukemia).

As the preponderance of the evidence is against the claim for entitlement to service connection for leukemia for accrued benefits purposes, the claim must be denied.  38 U.S.C.A. § 5107.

Cause of Death

The appellant asserts that the Veteran's chronic myelogenous leukemia was the result of his exposure to herbicides in Vietnam. Therefore, she maintains that she is entitled to DIC benefits as a result.

According to applicable laws and regulations, service connection for the cause of a Veteran's death requires evidence that a service-connected disability was the principal or contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death.  38 C.F.R. § 3.312(c).

Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), are not held to have contributed to a death that is primarily due to unrelated disability. Service-connected diseases or injuries affecting vital organs should 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 diseases or injury primarily causing death.  38 C.F.R. § 3.312(c)(2), (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).  The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).

The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition.  Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent.  If chronicity is not shown, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if a disease or injury is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates a present condition to that symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).

In this case, the Veteran's service medical records are negative for any treatment or diagnosis of leukemia.  This includes the periods of the Veteran's reserve service and his active duty service. The VA treatment records from 1969 to 1992 are also negative for any treatment or diagnosis of leukemia. There is no indication of the disease until its diagnosis in January 1997.

The Board notes that a September 2014 medical opinion was obtained as to whether the Veteran's CML was directly related to exposure to herbicides.  The examiner opined that the Veteran's CML had not been caused by herbicide exposure.  In so opining, the examiner noted that, other than age, the only known possible associated cause for CML was radiation exposure.  There is no evidence, and the appellant has not contended, that the Veteran was exposed to radiation while in service.  This examiner reviewed the Veteran's record and provided an opinion with a thorough rationale, and offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).   

Upon review of the record there is no evidence of a nexus between the Veteran's leukemia and service. Moreover, there is no evidence that the Veteran's leukemia was manifest to a compensable level within one year after service so as to satisfy the requirements for service connection on a presumptive basis.  See 38 C.F.R. §§ 3.307(a)(1), 3.309(a).  As noted above, the disease was first diagnosed many years after service.  Finally, there is a lack of evidence establishing that the Veteran's service-connected malaria either caused or aggravated his leukemia, or that any fatal respiratory distress syndrome or cardiopulmonary failure can be traced to military service.

Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2014) are met. See 38 C.F.R. § 3.309(e) (2014).  The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  The diseases for which service connection may be presumed to be due to an association with herbicide agents include chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma; non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  In general, for service connection to be granted for one of these diseases, it must be manifested to a degree of 10 percent or more at any time after service.  (As noted above, during the course of the appellant's appeal, chronic lymphocytic leukemia (CLL) was added to the list of presumptive diseases.  See 68 Fed. Reg. 59,540-59,542 (Oct. 16, 2003)).

The Board notes that the Veteran's service records reflect his service in the Republic of Vietnam, and thus he is presumed to have been exposed to herbicides in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii).

It is important to note that the diseases listed at 38 C.F.R. § 3.309(e) are based on findings provided from scientific data furnished by the National Academy of Sciences (NAS).  The NAS conducts studies to 'summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in Vietnam during the Vietnam era and each disease suspected to be associated with such exposure.' 64 Fed. Reg. 59,232-59,243 (Nov. 2, 1999). Based on input from the NAS reports, Congress amends the statutory provisions of the Agent Orange Act found at 38 U.S.C.A. § 1116 and the Secretary promulgates the necessary regulatory changes to reflect the latest additions of diseases shown to be associated with exposure to herbicides.

The Board also notes that the Secretary published the latest findings of diseases found to be associated with exposure to herbicides in May 2003.  68 Fed. Reg. 27,630-27,641 (May 20, 2003).  Those findings determined that the scientific evidence was such to show an association between exposure to herbicides and the development of CLL. The findings further discussed any possible association between exposure to herbicides and the development of other forms or leukemia. The report determined that there was no association between the development of acute lymphocytic leukemia (ALL) and/or CML and exposure to herbicides.  See 68 Fed. Reg. 27,634-35.

The appellant has argued that the Veteran's leukemia should be one of the diseases linked to exposure to herbicides in Vietnam, specifically exposure to Agent Orange. She, and her witness at the December 2001 hearing, stated that VA doctors told her that the Veteran's leukemia was the result of such exposure.  They also said that this was written in the Veteran's chart at the Wichita VAMC.

Despite the appellant's belief that the Veteran's leukemia should be one of the presumptive diseases, the Board cannot make such a finding on its own.  It is bound by the statutory and regulatory provisions that govern the determinations regarding such presumptions.  The current state of the scientific evidence, and the statutory and regulatory provisions governing these presumptive diseases, prohibit the Board from granting service connection on such a basis.

In regard to the appellant's assertions that she was told that the Veteran's leukemia was the result of exposure to Agent Orange, she has provided no objective evidence to support her assertions. As noted above, the appellant testified in October 1997 regarding this allegation, and she also identified a specific VA doctor. The RO contacted the appellant and her attorney in June 2001 and requested that she provide evidence that the VA doctor told her the Veteran's leukemia was caused by exposure to Agent Orange. She was also requested to notify the RO if she was unable to provide such evidence. The appellant did not respond, and an October 2001 supplemental statement of the case noted that the appellant had not responded to the specific request for evidence.  The appellant raised the same allegation at her December 2001 hearing with the undersigned Veterans Law Judge.  Her witness also testified that they were told the Veteran's leukemia was due to exposure to Agent Orange. Unfortunately, no objective evidence was provided to substantiate the allegations. A thorough review of the pages of the Veteran's medical chart from the Wichita VAMC fails to reveal any entry that links his leukemia to exposure to herbicides used in Vietnam, to include Agent Orange.

In this case, the medical and scientific evidence fails to show any causal relationship between the Veteran's leukemia and in-service herbicide exposure. 

The Board notes that a VA opinion was obtained in March 2012 as to whether the Veteran's leukemia was related to any of the types of leukemia considered to be presumptively linked to herbicide exposure.   The examiner provided a thorough explanation as to the differences between the Veteran's CML and the types of leukemia that can be service connected to herbicide exposure on a presumptive basis.  This medical opinion contained clear conclusions with supporting data, and a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  As such, it provides competent medical evidence against the appellant's claim.  In the absence of competent medical evidence to the contrary, the Board must deny the claim.

The appellant and her witness are certainly competent to testify as to what they heard, or thought they saw in regard to the doctor making a written entry in the Veteran's chart.  However, in the absence of any objective evidence to substantiate the allegation, neither is competent to render a medical opinion as to the etiology of the Veteran's leukemia.  See Woehlaert, Jones, supra.

In conclusion, the Board finds that it has not been shown that the Veteran's leukemia manifested itself within one year after service or that it is related to service. Furthermore, CML is not one of the presumptive diseases for service connection for exposure to herbicides, and there is no objective evidence of record to provide a nexus between the Veteran's presumed exposure to herbicides and the subsequent problem with leukemia.  Accordingly, given the remoteness from the Veteran's separation from service, and because of the lack of medical nexus evidence to support the appellant's contention of a relationship between the Veteran's leukemia first shown in 1997 and his military service, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death.

DIC under 38 U.S.C.A. § 1151

The appellant has argued that she is entitled to DIC benefits for the cause of the Veteran's death, pursuant to 38 U.S.C.A. § 1151, because the Veteran's leukemia was initially misdiagnosed.  She claims that such a mistake postponed treatment that could have proved beneficial to the Veteran and allowed him to survive long enough for additional treatment measures to be employed.

With regard to 38 U.S.C.A. § 1151, the Board notes that the provision has been amended since August 1997, when the appellant filed her claim.  The amendments were implemented to preclude benefits in the absence of evidence of VA negligence or an unforeseen event.  However, the amendments were made applicable only to claims filed on or after October 1, 1997.  See VAOPGCPREC 40-97 (1997).  Therefore, under the statute and the opinion of the General Counsel cited above, this claim has been adjudicated by the RO, and is being reviewed by the Board, under the version of 38 U.S.C.A. § 1151 extant before the enactment of the statutory amendment.  The version of section 1151 in effect when the appellant filed her claim in July 1997 provided, in pertinent part:

Where any Veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, . . . and such injury or aggravation results in additional disability to or the death of such Veteran, . . . [DIC] . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.  38 U.S.C.A. § 1151 (West 1991).

Thus, neither VA fault nor an event not reasonably foreseeable would be required for this claim to be granted.

The regulations implementing 38 U.S.C.A. § 1151 for claims received before October 1, 1997, are found at 38 C.F.R. §§ 3.358, 3.800 (2014). When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service- connected. The Veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. 38 C.F.R. § 3.358(b)(1). Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.358(b)(2). Additionally, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the Veteran or, in appropriate cases, the Veteran's representative. 'Necessary consequences' are those which are certain or intended to result from the VA hospitalization or medical or surgical treatment. 38 C.F.R. § 3.358(c)(3).

Here, the Veteran was seen at the Wichita VAMC on January 31, 1997, because of complaints of ill health. As a result of laboratory studies, he was admitted for further evaluation of an elevated white blood cell count, a possible indicator of leukemia. Initial results of the various studies, to include a BMB, indicated a diagnosis of CML. The Veteran was discharged from the hospital to follow a course of outpatient treatment for his leukemia, regardless of the specific diagnosis. Cytogenetic testing was pending at that time.

The Veteran was seen by Dr. C on February 12. The Veteran declined treatment with Hydrea due to his concerns regarding side effects. The drug was eventually started on February 19. The appellant reported that the Veteran felt better while on Hydrea and appears not to understand why Dr. C. later discontinued the medication. The medical evidence is clear that the Hydrea was discontinued in order to make the Veteran eligible for participation in a specific treatment protocol. There is no indication in the record that this was done without permission or without advice to the Veteran.

The results of the second BMB did not confirm a diagnosis of CML because of the absence of the Philadelphia chromosome. However, both VA treating physicians and Dr. C. stated that the Veteran's symptoms and other laboratory values were consistent with a CML-type leukemia. Regardless of the diagnosis, treatment was instituted from the moment of the Veteran's admission on January 31 and continued up until his death in April.

Upon the Veteran's admission to the Wichita VAMC on March 22 he was restarted on his Hydrea. He experienced respiratory difficulties in the hospital and was intubated. A bronchoscopy was performed for diagnostic purposes. There is no indication of any ill effects from the procedure. There is no evidence of any damage to the lungs or airways caused by the bronchoscopy.

The Veteran also experienced effusion in the area around the heart, the pericardial sac. Pericardiocentesis was performed where fluid was aspirated from the pericardial sac. There is no evidence that the Veteran's heart was ruptured or damaged in any way from this procedure. Multiple chest x-rays, CT scans of the chest, and an echocardiogram disclosed no evidence of a collapsed lung or ruptured heart. Moreover, no such damage was noted on the autopsy report.

A review of the Veteran's treatment by the Wichita VAMC staff found no evidence of any misdiagnosis or untimely treatment. The March 1999 VHA opinion stated that the Veteran died as a result of his disease.

The appellant has reported that the Veteran had all the symptoms of prostate cancer but acknowledged that he had never been diagnosed with the disease. The VA intake form noted a complaint of prostate problems; however, the autopsy report did not report any abnormalities associated with the prostate gland. The appellant also said that she was told that the Veteran had a number of other cancers. The multiple doctors' progress notes, procedure reports, discharge summaries, as well as the autopsy report provided no diagnosis of any other type of cancer involving the Veteran. Dr. C. made no reference to any other type of cancer affecting the Veteran and did not record any information from the Veteran to indicate a history of cancer.

In summary, the Veteran suffered from a disease that rapidly progressed from its initial diagnosis despite intensive efforts to treat it. Initial diagnosis followed testing of bone marrow that, at first, suggested a diagnosis of CML. Proper cytogenetic testing was accomplished to determine if the Philadelphia chromosome was present. Initial chemotherapy was delayed at the Veteran's request. It was thereafter only stopped to prepare the Veteran for an alternative treatment method. During his course of outpatient treatment, the Veteran was closely monitored and given multiple transfusions to improve his health. While an inpatient, the Veteran was stabilized to a point but underwent a rapid deterioration in his health and ultimately died from his leukemia.


The appellant has provided no objective evidence to support her contentions. The medical records clearly document the onset of the disease and the treatment until the Veteran's death. The difference in whether the leukemia was referred to as CML versus CMML appears to have caused no delay in the treatment of the Veteran. Moreover, there is no objective evidence of record to show that any treatment provided to the Veteran was incorrect based on whether the diagnosis was CML or CMML. The Wichita VAMC staff review and VHA opinion considered that possibility in concluding that the Veteran died from his disease and that there was no misdiagnosis or untimely treatment. The appellant has been afforded several opportunities to provide objective evidence to the contrary but has not done so.

Therefore, in view of the foregoing, the Board finds, based on the evidence in this case, that the Veteran did not suffer an additional disability or injury during the course of his treatment at the Wichita VAMC that resulted in his death.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of positive and negative evidence on the merits.  Therefore, the Board is unable to identify a basis for granting benefits under 38 U.S.C.A. § 1151 for the cause of the Veteran's death.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).


ORDER

Entitlement to service connection for leukemia for accrued benefits purposes is denied.

Entitlement to DIC benefits on the basis of service connection for the cause of the Veteran's death is denied.

Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151 is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs