Citation Nr: 20004499 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-11 034 DATE: January 21, 2020 ORDER Service connection for idiopathic thrombocytopenic purpura (ITP) as a result of exposure to chemicals for accrued benefits purposes only is denied. Service connection for bilateral lower extremity (BLE) neuropathy as a result of exposure to chemicals for accrued benefits purposes only is denied. Service connection for bone marrow abnormalities as a result of exposure to chemicals for accrued benefits purposes only is denied. Service connection for ovarian cancer as a result of exposure to chemicals for accrued benefits purposes only is denied. Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the Veteran’s cause of death is denied. FINDINGS OF FACT 1. The Veteran was not diagnosed with ITP, BLE neuropathy, bone marrow abnormalities, or ovarian cancer during service or for many years thereafter. 2. There is no competent and credible evidence of record that the Veteran was directly exposed to toxic chemicals during her service at Fort McClellan. 3. The Veteran is not service-connected for any disability, including her underlying cause of death, metastatic ovarian cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for ITP have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for BLE neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bone marrow abnormalities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for ovarian cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309 (2018). 5. The criteria for entitlement to DIC benefits based on service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.312, 3.313 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1961 to July 1962. She died in April 2013 and the Appellant is her surviving spouse. These matters were previously before the Board in April 2018, at which time they were remanded for further evidentiary development. At a July 2016 hearing, the Appellant testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his or her death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Payment of accrued benefits requires that the Veteran or other payee had a claim for the underlying benefit pending at the time of death or that benefits had been awarded and unpaid at the time of death. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). A request for a claimant to be substituted as an appellant for purposes of processing a claim for VA benefits to completion must be filed not later than one year after the date of death of the original claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). The Veteran filed a service connection claim for ITP, BLE neuropathy, bone marrow abnormalities, and ovarian cancer in March 2013. As previously noted, she died in April 2013. The service connection claims remained pending at the time of her death. The Appellant filed an application within one year of the Veteran’s death and has been properly substituted for the purposes of processing the claims to completion. See 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. §§ 3.1000(c), 3.1010(b). Additionally, he claims entitlement to VA DIC benefits as the surviving spouse of the Veteran. DIC benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. The Veteran was not service-connected for any disabilities at the time of her death and has not been subsequently service-connected for any conditions. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Appellant has contended that the Veteran’s claimed disabilities were due to exposure to chemicals while stationed at Fort McClellan, Alabama. She was stationed at Fort McClellan for basic training for eight weeks beginning in July 1961. VA has noted that potential exposures during service at that location could have included radioactive compounds, chemical warfare agents, and airborne polychlorinated biphenyls (PCBs). However, VA has determined that there are currently no adverse health conditions associated with service at Fort McClellan. See https://www.publichealth.va.gov/exposures/fort-mcclellan/ (last accessed January 16, 2020). Unlike exposure to herbicide agents, Camp Lejeune Contaminated Water, and Gulf War toxins resulting in undiagnosed illnesses/infectious diseases, presumptive service connection is not available for exposure to chemicals at Fort McClellan. However, direct service connection due to exposure may still be established. The Veteran’s June 1961 service entrance examination and report of medical history did not reveal any relevant preexisting conditions. Her service treatment records (STRs) contained no diagnoses of ITP, BLE neuropathy, bone marrow abnormalities, or ovarian cancer. Two blood tests conducted in January 1962 and May 1962 demonstrated normal to mildly elevated white blood cell counts. The July 1962 separation examination was negative for any of the claimed conditions. On her separation report of medical history, the Veteran stated that she previously had polio, resulting in left side paralysis. The condition was reportedly resolved but for occasional cramps in the left lower extremity. Her military personnel records and STRs do not indicate any chemical exposure during service. Post-service, private records indicated that the Veteran had a history of seizures dating back to the 1990s which were treated by a variety of anti-epileptic drugs (AEDs). She developed mild thrombocytopenia in the 1990s as well. A bone marrow biopsy conducted in 2002 revealed abnormalities. Private clinicians stated that the Veteran’s blood platelet and white blood cell counts had fluctuated since her diagnoses of thrombocytopenia and leukopenia, with a decrease in white blood cell count when on the AEDs Tegretol and Dilantin starting in 1997. In April 2010, a bone marrow biopsy was very hypocellular. The Veteran was hospitalized for her extremely low platelet count and was diagnosed with ITP. Private and VA clinicians speculated that her long-standing history of mild thrombocytopenia and leukopenia were related to her chronic AED use. The AED Valproic acid was discontinued secondary to the ITP diagnosis. Aggressive treatment with intravenous immune globulin (IVIG) and Prednisone was undertaken and a second bone marrow biopsy in May 2010 demonstrated improvement. A VA clinician noted that the abnormal bone marrow findings were thought to be from the Veteran’s medications or from a cleaning solution she had been using for two days. The Veteran also reported during her hospitalization for ITP that she began experiencing numbness and paresthesias in her BLE in January and February 2010 and that the symptoms had progressed up her legs. A private clinician noted that Dilantin was known to cause peripheral neuropathy and paresthesias. Based on her symptoms, a nerve conduction study/EMG was conducted in September 2010 with normal results. There was no electrodiagnostic evidence of a generalized sensory or sensorimotor peripheral neuropathy, a focal motor neuropathy, polyneuropathy, or lumbar radiculopathy. In December 2010, the Veteran was diagnosed with Stage IIIa ovarian cancer. Treating clinicians speculated that her BLE neuropathy was probably paraneoplastic. Given her neuropathy symptoms, a skin biopsy for epidermal nerve fiber density testing was performed. The results were not indicative of peripheral neuropathy, but epidermal nerve fiber densities were elevated suggesting an unusual manifestation of a small fiber neuropathy. In an April 2011 private treatment record, her treating clinician noted that the Veteran’s past history of thrombocytopenia resolved once her Dilantin and Tegretol AED medications were discontinued. In September 2012, a VA clinician stated that the Veteran’s neuropathic pain was not related to her ovarian malignancy but did not provide another etiology for her symptoms. The Veteran entered a VA hospice program in December 2012 where she remained until her death in April 2013. She developed pneumonia as a complication of her terminal metastatic ovarian cancer. Her death certificate reflected pneumonia as the primary cause of death due to the underlying ovarian cancer. At the July 2016 hearing, the Appellant stated that he had read reports put out by the government that toxins used at Fort McClellan caused cancer, including ovarian cancer. He also described an article which stated that private chemical processing was conducted near Fort McClellan for which a settlement was later paid to nearby residents. He stated that the Veteran believed that her ovarian cancer was the result of her service at Fort McClellan prior to her death. Pursuant to the remand requests, the Joint Services Records Research Center (JSRRC) was requested to research whether the Veteran was exposed to toxic chemicals while at Fort McClellan. In February 2019, a response was received. JSRRC indicated that it coordinated its research with the National Archives and Records Administration. They were unable to locate any 1961 unit records submitted by the Women’s Army Corps Center at Fort McClellan. Due to the lack of unit records, they were unable to document whether the Veteran was exposed to herbicide agents or any other chemicals during the period she was stationed there. JSRRC suggested further research regarding use of herbicide agents and pesticides could be obtained from the Armed Forces Pest Management Board. The Armed Forces Pest Management Board was contacted for further research and submitted a memorandum in July 2019. It stated that it was the Department of Defense’s (DOD) consistent policy to use only commercial herbicides and pesticides registered with the Federal Insecticide, Fungicide, and Rodenticide Act of 1947 and subject to the safe transportation, storage, handling, and use requirements set by law and regulation in effect at the time. Any such herbicides would have been applied under the direction of designated DOD personnel properly qualified for the application of such pesticides. In 1961, retention of pesticide purchase and use records for a historical record were not required. The Pest Management Board did not have purview over the use of any other non-pesticidal chemicals. The Veteran was not diagnosed with any of the claimed conditions during active service or for many years thereafter. Thrombocytopenia was diagnosed in the 1990s and was speculated by the Veteran’s treating clinicians to be due to medications taken to treat seizures. ITP resulted due to low platelet count and along with emergency treatment, adjustments were made to her AED medications, resolving ITP. Bone marrow abnormalities were also discovered long after separation and were also deemed to be connected with her prescribed medications. BLE neuropathy was first noted in early 2010 and suspected causes were listed as paraneoplastic or due to an unusual small fiber neuropathy. Ovarian cancer was diagnosed in December 2010. Treating clinicians did not suggest that any of the diagnosed conditions had any connection to exposure to toxic chemicals. There is no presumption regarding service at Fort McClellan, therefore evidence of direct exposure to toxic chemicals is needed to support service connection. VA research confirmed that only commercial herbicides and pesticides were used at DOD facilities, not tactical herbicide agents. Further, any use was done in accordance with existing law. JSRRC was not able to definitively confirm whether or not the Veteran herself was exposed to toxic chemicals during her period at Fort McClellan, however, VA has determined that although exposures to high levels of radioactive compounds, chemical warfare agents, or airborne PCBs have been shown to cause a variety of adverse health effects, there is no evidence of exposures of that magnitude having occurred at Fort McClellan. VA has also stated that there are currently no adverse health conditions associated with service at Fort McClellan. There are no lay statements or secondary sources in the claims file to support the contention that the Veteran was directly exposed to any toxic chemicals during service. Although the Appellant described general reports of toxic exposures at Fort McClellan, he could provide no information regarding the Veteran’s personal exposure to any chemicals. Without evidence of direct exposure, service connection based on exposure to chemicals at Fort McClellan is not warranted for any of the claimed conditions. Further, because the Veteran is not service-connected for any disability and has not been granted service connection for any of the claims on appeal, entitlement to DIC must be denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.