Citation Nr: 1803108 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 06-14 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for cause of death. 2. Entitlement to basic eligibility to Dependent's Education Assistance. REPRESENTATION The Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to October 1963. He passed away on July [REDACTED], 1989. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2013, the Board remanded this matter for further development. In April 2009, the Appellant testified before a Veterans Law Judge (VLJ) at a travel Board hearing; a transcript has been associated with the claims file. Thereafter, in an October 2017 letter, she was notified that the VLJ who conducted the hearing was no longer employed by the Board and given an opportunity to testify before another VLJ. However, she declined. See October 2017 Hearing Option Form. As such, the Board finds she has been provided a meaningful opportunity to effectively participate in the processing of these claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). FINDINGS OF FACT 1. The Veteran passed away on July [REDACTED], 1989 due to chronic myeloid leukemia. 2. The Veteran's chronic myeloid leukemia was caused by exposure to hazardous chemicals and/or toxins while stationed at Fort Richardson, Alaska from January 1963 to September 1963. 3. The Veteran passed away from a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of death have been met. 38 U.S.C. §§ 1131, 1132, 1141 (2012); 38 C.F.R. §§ 3.5, 3.303, 3.304, 3.312 (2017). 2. The criteria for basic eligibility to Dependent's Education Assistance under Chapter 35 of Title 38 of the United State Code have been met. 38 U.S.C. §§ 3501, 3510 (2012); 38 C.F.R. §§ 3.807, 21.3021 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations impose obligations on the VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In that regard, the Appellant contends the RO has failed to address her theory of entitlement based on the Veteran's exposure to "solvents" in service, such as pesticides and herbicide agents. July 2014 Letter from the Appellant. She asserts there were hazardous chemicals and/or toxins were in the air, water, and even in the food consumed by the Veteran while he was stationed at Fort Richardson in Alaska. Id.; see also March 2011 Statement in Support of Claim (the Appellant claimed the entire state of Alaska was contained by solvents, pesticides, chemical weapons, radioactive materials, fuels, etc.). A review of the claims file discloses that while the RO developed the issues of exposure to ionizing radiation and herbicide agents while the Veteran was stationed at Fort Richardson, no such development was undertaken with respect to any other hazardous chemicals and/or toxins that may have been present there. However, the RO's failure to develop this issue is inconsequential given the Board's grant of service connection for cause of death herein. As another matter, in July 2013, the Board remanded these matters for in part for a VA medical opinion. See July 2013 Board Decision. The Board asked the VA examiner proffering the opinion to address whether it was at least as likely as not the Veteran's chronic myeloid leukemia was caused by or otherwise related to his service, to include the claimed exposure to solvents and/or other toxic substances, such as herbicides, buried mustard gas cylinders, and heavy metals. Pursuant to this request, the RO obtained a VA medical opinion in July 2014. See July 2014 VA Medical Opinion. However, the July 2014 VA examiner limited their opinion to the issues of exposure to ionizing radiation and herbicide agents in service. Thus, it did not substantially comply with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Nonetheless, the non-compliance is of no moment in view of the Board's grant of service connection for cause of death herein. II. Service Connection for Cause of Death The Appellant's claim is a dependency and indemnity compensation (DIC) claim based on service connection for cause of death. DIC is payable to the surviving spouse of a deceased veteran in the event of a service-connected death. 38 C.F.R. § 3.5. Service connection may be established for a disability that caused a veteran's death either principally or contributorily. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Determining whether service connection for cause of death is warranted is based on the same statutory and regulatory scheme which governs service connection for a disease or injury incurred in or aggravated by active duty service. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 U.S.C. § 1133(c); 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specifically, the Appellant contends the Veteran was exposed to ionizing radiation while stationed at Fort Richardson in Alaska, which lead to his death due to chronic myeloid leukemia. See April 2009 Board Hearing Transcript at 3; January 1990 Statement in Support of Claim; see also Service Personnel Records, Service Outside the Continental US (documented service at the Elmendorf Air Force Base in Alaska from January 1963 to September 1963; subsequently, it was merged with Fort Richardson and is presently Joint Base Elmendorf-Richardson). In the alternative, she asserts he was exposed to hazardous chemicals and/or toxins, to include herbicide agents and "solvents" in service, which led to his death. See April 2009 Board Hearing Transcript at 3; March 2011 Statement in Support of Claim. Here, there is no doubt the Veteran passed away from chronic myeloid leukemia in July 1987. See April 2005 Letter from Dr. J.C.B.; see also Certificate of Death (noted the Veteran's death occurred due entirely to natural causes, but did not specify what the natural causes were). Thus, that element for satisfying this appeal is shown. As noted above, the RO developed the issues of exposure to ionizing radiation and herbicide agents in service. In the end, the Veteran's exposure to ionizing radiation and herbicide agents could not be verified. See June 2014 Letter from the Department of the Army, US Army Institute of Public Health, Health Physics Program (reported there were no records indicating the Veteran's duties included activities that would result in occupational exposure to ionizing radiation); December 2013 Response from Defense Personnel Records Information Retrieval System (reported no evidence of spraying, testing, transporting, storage, or usage of Agent Orange or other tactical herbicide agents at Fort Richardson could be found). Therefore, an in service incurrence of exposure to ionizing radiation and herbicide agents cannot be established and service connection cannot be granted on either basis. Shedden, supra. Notwithstanding the RO's failure to assist in the development of the issue of exposure to other hazardous chemicals and/or toxins in service, the Appellant submitted an article discussing remediation activities affecting Fort Richardson due to buried chemical warfare agents as well as chlorinated solvents, organic solvents, and heavy metals in groundwater and soil. See Fort Richardson (USARMY) Alaska EPA ID# AK6214522157, Alaska Resources Library and Information Services, http://yosemite.epa.gov/r10/nplpad.nsf/0/5e6761e624000f648525659400482927? OpenDocument (last visited May 8, 2013). According to the article, five different sites of contamination have been identified on base; Eagle River Flats delta, which had elevated levels of white phosphorous; Poleline Road Disposal Area, which had volatile organic compounds, heavy metals, and polychlorinated biphenyls; Roosevelt Road Transmitter Site; Armored Vehicle Maintenance Area, which had chlorinated solvents; and Nike Summit Site, which had fuel-related volatile organic compounds and chlorinated solvents, and heavy metals. People who came into direct contact with or ingested contaminated sediment, surface water, soil, or groundwater were determined to be at risk. The Board notes the Alaska Resources Library and Information Services partners with various federal and state agencies to provide access to information regarding natural and cultural resource; agencies such as the National Park Service, Fish & Wildlife Service, US Geological Survey, and Bureau of Safety & Environmental Enforcement. Alaska Resources Library and Information Services, http://www. arlis.org /about/public/ (last visited Jan. 9, 2018). Accordingly, the Board finds it is probative for purposes of establishing an in service incurrence. Shedden, supra; see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Additionally, the Appellant submitted a report titled Geophysical Investigations and Buried Disposal Site on Fort Richardson Alaska, which disclosed the Poleline Road Disposal Area, located on Fort Richardson, was a dump in the early 1950s, and was identified as an area "containing buried hazardous materials and volatile organic compounds in proximity to multiple groundwater horizons." Allan J. Delaney, et al., Geophysical Investigations and Buried Disposal Site on Fort Richardson Alaska, CREEL (Cold Regions Research and Engineering Laboratory) Report, (September 1997). Excavation of certain areas produced exploded and unexploded ordnance; chemical agent test kits; steel cylinders containing chemical agents, such as mustard gas; and medical waste among other items. The Board notes the CREEL is a part of the United States Army Engineer Research and Development Center. US Army Corps of Engineers, Engineer Research and Development Center, http://www.erdc.us ace.army.mil/Locations/CRREL.aspx (last visited Jan. 9, 2018). Moreover, the CREEL Report was prepared for the United States Army Alaska Directorate of Public Works. As such, the Board finds it is also probative for purposes of establishing an in service incurrence. Shedden, supra; see also Madden, supra. An in service incurrence of exposure to hazardous chemicals and/or toxins having been established, the Board turns to whether there is a nexus between this exposure and the Veteran's chronic myeloid leukemia. In terms of a nexus opinion, in a June 2006 letter, Dr. J.C.B. relayed having a conversation with the Veteran during which he disclosed exposure to "toxic solvents" approximately 20 years prior to the onset of his chronic myeloid leukemia; in 1987. June 2006 Letter from Dr. J.C.B.; see also July 2011 Letter from Dr. J.C.B. According to Dr. J.C.B., the onset of his chronic myeloid leukemia is consistent with the timeframe during which leukemia due to solvent exposure manifests. June 2006 Letter from Dr. J.C.B.; see also May 2006 Letter from Dr. J.C.B. (enclosing sources explaining an association between chronic myeloid leukemia and exposure to solvents and radiation). As there are no other nexus opinions of record in this regard, Dr. J.C.B.'s June 2006 letter is necessarily the most probative evidence of record. For the reasons above, the Board finds the preponderance of the evidence supports service connection for cause of death. See 38 C.F.R. §§ 3.5, 3.303, 3.304, 3.312. III. Basic Eligibility to Dependents' Educational Assistance Basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 may be met if a veteran was discharged under conditions other than dishonorable and died as a result of a service-connected disability. 38 C.F.R. § 3.807(a)(1), (4). In light of the above grant of service connection for cause of death, the Board finds the preponderance of the evidence also supports the grant of basic eligibility to Dependents' Educational Assistance. 38 U.S.C. § 3501, 3510; 38 C.F.R. §§ 3.807, 21.3021. ORDER Service connection for cause of death is granted. Basic eligibility to Dependent's Education Assistance is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs