Citation Nr: 1610367 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 09-38 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from January 1968 to May 1969. He died in December 2007, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran's certificate of death lists the immediate cause of death as disseminated fungal infection due to, or as a consequence of, acute leukemia. 2. At the time of his death, service connection was not in effect for any disorder. 3. Neither the causes of the Veteran's death shown on the death certificate nor any other diagnosed blood disorder were related to his active military service, to include in-service herbicide exposure. CONCLUSION OF LAW A disability incurred in or aggravated by service or presumed to have been incurred in service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1116, 1310, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). With regard to the appellant's claim for entitlement to service connection for the cause of the Veteran's death, the appellant was provided a notification letter in April 2009 that satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (2009). After the notice letter was provided to the appellant, the claim was readjudicated in a November 2014 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (finding that VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). In addition, the duty to assist the appellant has also been satisfied in this case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records. The appellant and her representative submitted internet research information, medical treatise information, private medical opinions, and numerous written statements discussing their contentions. Neither the appellant nor her representative has identified any outstanding pertinent evidence related to the claim for entitlement to service connection for the cause of the Veteran's death. In addition, VA medical opinions with respect to the claim on appeal were obtained in May and November 2014. VA's duty to assist additionally specifically includes providing a medical opinion when necessary if the claim at issue involves disability compensation. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 3.326; DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2014 VA medical opinion obtained in this case are more than adequate, as it is predicated on a full reading of the record. In particular, the examiner considered the pertinent evidence of record and the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records and current medical treatise information reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion in this appeal has been met. 38 U.S.C.A. § 5103A(a). The appellant's claim was previously before the Board in September 2014 and remanded for additional evidentiary development. The requested development was completed as directed and the appellant's claim is now before the Board for final appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Veteran died in December 2007. The Veteran's certificate of death lists the immediate cause of death as disseminated fungal infection due to, or as a consequence of, acute leukemia. At the time of his death, service connection was not in effect for any disorder. The appellant filed an application for Dependency and Indemnity Compensation benefits in April 2009, asserting that the Veteran's death was caused by exposure to herbicides while stationed in Vietnam during active service. When a veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310. In a claim where service connection was not established for the fatal disability prior to the death of the veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. The Board must determine whether the fatal disorder should have been service-connected. 38 C.F.R. § 3.312. Generally, service connection may be established 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(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as leukemia or malignant tumors, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who served in Vietnam is presumed to have been exposed to herbicides during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including ischemic heart disease as well as all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) and non-Hodgkin's lymphoma, are deemed service-connected. 38 C.F.R. § 3.309(e). The Board notes that acute myelocytic leukemia (AML) is not a B-cell leukemia. See e.g. http://www.publichealth.va.gov/exposures/agentorange/conditions/bcell-leukemia.asp. However, regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). The Veteran's service treatment records are silent for any findings or diagnosis of leukemia or any other blood disorder. His DD Form 214 showed that he served in Vietnam from May 1968 to May 1969. Post-service private treatment records dated in 2006 and 2007 showed findings of myelodysplastic syndrome (MDS), refractory anemia with excess blasts, polymyalgia rheumatica, pancytopenia, pulmonary nodules, bilateral pulmonary infiltrates, gram-positive rod bacteremia, invasive fungal rhinosinusitis, neutropenic fever, invasive fungemia, and AML. The Veteran was shown to undergo stem cell transplant and total body irradiation. The record also included medical treatise information on neoplastic hematologic disorders as well as newspaper articles discussing high dioxin levels in Vietnam. In a May 2009 statement, Dr. J. S. K. wrote that the Veteran was a former patient. He explained that the appellant had contacted him regarding the Veteran's possible exposure to dioxins with leukemia. It was his understanding that the Veteran was exposed to dioxins in service, had documented pancytopenia with no ascertained explanation, and a final diagnosis of MDS. The physician submitted internet articles that he indicated showed the relationship of dioxin exposure to leukemia. The articles discussed the Institute of Medicine's (IOM) findings on long term health effects of exposures to herbicides, indicating that there was inadequate or insufficient evidence to determine whether an association existed between herbicide exposure and leukemia, other than chronic lymphocytic leukemia (CLL). In a September 2009 statement, Dr. J. S. K. reiterated his opinion that it was reasonably possible the Veteran had systemic effects from dioxin exposure, which would have included pancytopenia. In April 2014, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In a May 2014 VA medical opinion, the examiner, a VA physician with a specialty in Hematology/Oncology, noted her review of the entire record, citing to specific records as well as medical treatise evidence from IOM. She opined that scientific literature, as reviewed by IOM, does not support an association between AML and Agent Orange exposure. It was indicated with 100 percent certainty, the Veteran's listed cause of death, disseminated fungal infection, was directly related to and caused by his underlying diagnosis of AML that evolved from his original diagnosis of MDS. The examiner opined that the scientific literature, as reviewed by IOM, did not support an association between exposure to Agent Orange and the systemic effects of those disorders. She highlighted that there was inadequate or insufficient evidence to confirm an association between AML and Agent Orange exposure in that latest IOM study update from 2012. In a July 2014 statement, Dr. J. S. K. reiterated that the Veteran was exposed to dioxin during his service in Vietnam and was diagnosed as having MDS with acute leukemia before he expired. The physician then opined that the Veteran's "exposure to Agent Orange is at least as likely as not that any of the veterans diagnosed conditions, caused, or substantially contributed to, the veteran's death". In July 2014, the appellant's representative cited to the VA examiner's May 2014 opinion that the Veteran's listed cause of death, disseminated fungal infection, was directly related to and caused by his underlying diagnosis of AML that evolved from his original diagnosis of MDS. The representative argued that the appellant's claim should be granted as presented, as the Veteran's original diagnosis has been directly attributed to exposure to herbicides by National Institutes of Health (NIH) and subsequently accepted by VA. In September 2014, the Board remanded this matter for additional development and readjudication. Thereafter, the AOJ sought an additional clarifying medical opinion. In a November 2014 VA medical opinion, the examiner, a VA physician, indicated that he was in complete agreement with the opinion of the May 2014 VA examiner. After reviewing the record and citing to medical treatise evidence, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's conceded Agent Orange exposure caused his MDS, and subsequent transformation to AML, and that the Veteran's death from disseminated fungal infection was directly related to his underlying diagnosis of AML that evolved from his MDS, and was not the result of a systemic effect from Agent Orange. In the cited rationale, the examiner commented that Vietnam veterans have expressed concerned about whether MDS, most often precursors to AML, were associated with Agent Orange exposure. However, the examiner noted that there were no results on those conditions in conjunction with the chemicals of interest found by searches of Veterans and Agent Orange (VAO) literature released by the National Academy of Sciences. The examiner concluded, on the basis of the evidence reviewed and previous VAO reports, there was inadequate or insufficient evidence to determine whether there was an association between exposure to the chemicals of interest and leukemias in general with the exception of specific leukemia subtypes of chronic B-cell hematoproliferative diseases, which were more appropriately grouped with lymphomas. In a February 2016 statement, the appellant's representative cited to an October 2012 online article published in The MDS Beacon, where Dr. D. P. S., M. D., wrote "...given what we know about MDS biology, it seems much more likely that Agent Orange and accompanying toxic hydrocarbon exposure contribute to MDS than to, say, ischemic heart disease or prostate cancer." The representative indicated that The MDS Beacon was a source of independent, up-to-date news and information for the MDS community. It was asserted that substantial medical evidence linked MDS with herbicide exposure, and that MDS was at least a contributing cause of the Veteran's death. It was also highlighted that the Veteran's private physician believed the Veteran's cause of death was connected to herbicide exposure in Vietnam. The Board has determined that service connection for the cause of the Veteran's death is not warranted. As an initial matter, there is no factual basis in the record that any condition listed on the Veteran's death certificate or any other blood disorder was incurred during service, or manifested as a chronic disease within a year thereafter, or for several years after his discharge from service in 1969. Available service treatment records do not reflect any blood disorder findings. Post-service medical evidence of record first showed blood disorders and leukemia findings many years after the Veteran's separation from active service. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Evidence of record clearly reflects that any blood disorder or leukemia was not manifested to a compensably disabling degree within the first year after the Veteran completed his active service in 1969. While the Veteran had documented service in Vietnam and was presumed to be exposed to herbicides, probative evidence of record reflected that any of the Veteran's diagnosed blood disorders, such as MDS, or his diagnosed form of leukemia, AML, were not considered one of the applicable diseases warranting presumptive service connection for Agent Orange. In support of her claim, the appellant and her representative submitted internet research materials or quotations from various sources detailing that a type of relationship existed between MDS, AML, and herbicide exposure. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (finding that medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999). Despite being accompanied by the opinion of the Veteran's former private treating physician, the internet research materials associated with the file are of very little probative value for the appellant's claim, as they were general in nature, did not specifically relate to the facts and circumstances surrounding this particular case, and do not actually establish a positive relationship between the Veteran's cause of death and events during service. Furthermore, the Board must also find occasional citations by the appellant's representative to heavily edited samples of additional treatise materials like articles from NIH or The MDS Beacon to be of little probative value, as a full copy of those materials was clearly never made part of the record. The Board has further determined that each of the medical opinions provided by the Veteran's former private treating physician is of little probative value. In a May 2009 statement, the physician suggested that IOM research showed the relationship of dioxin exposure to leukemia. However, the Board must highlight that IOM findings submitted by the physician to establish a relationship between herbicide exposure and AML specifically indicated that there was inadequate or insufficient evidence to determine whether an association existed between herbicide exposure and leukemia, other than CLL. In September 2009, the physician opined that it was "reasonably possible" the Veteran had systemic effects from dioxin exposure, which would have included pancytopenia. Finally, in July 2014, he opined that the Veteran's "exposure to Agent Orange is at least as likely as not that any of the veterans diagnosed conditions, caused, or substantially contributed to, the veteran's death". The foregoing opinions provided cursory conclusions with minimal rationale, contained speculative findings, and, in one case, included a completely incomprehensible conclusion. 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."). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). Consequently, the Board notes that the private medical evidence is insufficient to show that the Veteran's listed causes of death or any other diagnosed blood disorders were incurred as a result of herbicide exposure during active service. By contrast, the VA examiner provided clear conclusions in the November 2014 VA medical opinion that it was less likely than not (less than 50 percent probability) that the Veteran's conceded Agent Orange exposure caused his MDS, and subsequent transformation to AML, and that the Veteran's death from disseminated fungal infection was directly related to his underlying diagnosis of AML that evolved from his MDS, and was not the result of a systemic effect from Agent Orange. The examiner was shown to base that opinion on a review of the Veteran's entire record as well as a multitude of current medical research findings. The opinion included an extensive discussion of the medical evidence of record as well as the lay assertions of the appellant. The examiner also provided a detailed rationale for the proffered conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Here, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's listed causes of death or other diagnosed blood disorders were related to events during active service weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on the foregoing discussion, there is no basis upon which to conclude that the Veteran's listed causes of death or any diagnosed blood disorder were incurred in or aggravated during military service, including on any direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. The appellant's statements that the Veteran's diagnosed AML was incurred due to in-service herbicide exposure and that he had other diagnosed blood disorders incurred due to in-service herbicide exposure that contributed to his death are not competent. Evidence of the etiology of the cause of the Veteran's death requires medical diagnosis based on diagnostic testing, which the appellant is not trained to perform. See Jandreau v. Nicholson, 492 F.3d at 1377 (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the United States Court of Appeals for Veterans Claims). The Board is cognizant that the appellant's statements are competent evidence as to observable symptomatology. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). However, the statements that the Veteran's death was caused by or aggravated by a disability incurred as a result of events during active service draw medical conclusions, which the appellant is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's cause of death falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Accordingly, entitlement to service connection for the cause of Veteran's death is not warranted. The medical and lay evidence of record simply does not establish either on a direct or presumptive basis that any diagnosed blood disorder, AML, or any other condition listed on the Veteran's death certificate was related to his military service. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs