Citation Nr: 21067869 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-37 398 DATE: November 5, 2021 ORDER Entitlement to service connection for leukemia, for the purpose of retroactive benefits is denied. Entitlement to service connection for the cause of the Veteran's death, for the purpose of retroactive benefits is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's leukemia diagnosis was considered a Chronic B-cell leukemia. 2. The preponderance of the evidence is against a finding that a service-connected disability was a principal or contributory cause of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for leukemia, for the purpose of retroactive benefits have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310, 3.816. 2. The criteria for entitlement to service connection for the cause of the Veteran's death, for the purpose of retroactive benefits have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1966 to September 1968. The Veteran passed away in November 1995, and the Appellant in this claim is the Veteran's daughter. As the Board has discussed in prior decisions, in March 2011, after chronic B-cell leukemias were added to the list of diseases presumptively associated with exposure to certain herbicide agents, the agency of original jurisdiction (AOJ) initiated a special review of the Veteran's file in accordance with Nehmer v. U.S. Department of Veterans Affairs regarding the Veteran's previously-denied service connection claim for leukemia as well as the claim for the cause of the Veteran's death, for the purposes of awarding possible retroactive benefits. Claims evaluated and granted under Nehmer are evaluated under different rules than most VA claims. In claims involving service connection for diseases presumed to be caused by herbicide agent exposure, VA has issued special regulations to implement orders of a United States district court in the class action of Nehmer v. United States Dep't of Veterans Affairs. 38 C.F.R. § 3.816. See Nehmer v. United States Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. Of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The Nehmer courts carved out an exception to the usual rules involving herbicide agent-related diseases and the effective dates assigned to these grants in order to allow for retroactive grants of service connection and compensation benefits intended to address inequities in the laws and adjudication of these claims during the 1980s and 1990s. In January 2012, the AOJ notified the Veteran's surviving son and daughters that it had undertaken its special review of the Veteran's file and that it had issued a rating decision denying the claims for retroactive benefits. As adult children of a deceased Nehmer class member, the Veteran's surviving son and daughters can be potential recipients of retroactive benefits under the limited Nehmer provisions found in 38 C.F.R. § 3.816(f). In other worse, unlike typical VA benefits cases, adult children of a deceased Nehmer class member have standing to receive retroactive benefits if, and only if, those benefits are awarded under this section. However, as is noted in 38 C.F.R. § 3.816(g), such awards only apply to disability compensation and death and indemnity compensation (DIC) for disabilities or death caused by a disease presumed to be related to herbicide agents, other than chloracne, outlined in 38 C.F.R. § 3.309(e). As the Board has previously discussed, these diseases now include all chronic B-cell leukemias (including, but not limited to hairy-cell leukemia and chronic lymphocytic leukemia). The present appeal arises from the Appellant's disagreement with the January 2012 rating decision. The Appellant testified before the Board during a May 2018 videoconference hearing. This matter has previously been before the Board on two occasionsin May 2019 and September 2020. In both situations, the Board remanded the claims to address open medical questions that needed to be resolved before the Board could adjudicate the case. 1. Entitlement to service connection for leukemia, for the purpose of retroactive benefits As was discussed above, under the outline of the Nehmer cases and the enacting VA regulations, the outcome of the Appellant's claim for retroactive benefits depends on whether the Veteran experienced a disease that is presumptively linked to exposure to herbicide agents. The Board notes that, by virtue of the Veteran's service in the Republic of Vietnam, VA has already conceded that the Veteran's is presumed to have been exposed to herbicide agents. The Board has previously remanded this claim to attempt to obtain clarification regarding the nature of the Veteran's diagnosed disease prior to his death. In the May 2018 hearing, as well as in associated written materials, the Appellant provided a thorough accounting of reasons why she believed the Veteran's actual diagnosis was acute lymphocytic leukemia (ALL) rather than acute myelogenous leukemia (AML)the diagnosis that was reported at several points in the Veteran's medical records as well as on his death certificate. Noting the Appellant's expertise through her employment involving medical coding, as well as documentation in the Veteran's medical records, the Board concluded that the possibility existed that the Veteran's actual diagnosis was ALL, as the Appellant asserted. This was significant because ALL is frequently a B-cell leukemia, as the Appellant showed through research provided from the American Cancer Society. As a matter of background, in March 2003, VA first proposed to amend 38 C.F.R. § 3.309(e) to include chronic lymphocytic leukemia among the list of diseases presumptively linked to exposure to herbicide agents. See 68 FR 14,567 (March 26, 2003). In March 2010, based on an update to the National Academy of Sciences (NAS) Institute of Medicine committee report, VA then proposed to include hairy cell leukemia and other chronic B-cell leukemias to the list of presumptively linked diseases as well. See 75 FR 14,391 (March 25, 2010). Because this claim was raised in the context of a Nehmer special review, for the Appellant to be awarded retroactive service connection benefits, the Veteran's disease must be one that is identified as presumptively linked to exposure to herbicide agents. Notably, neither ALL nor AML are specifically listed under 38 C.F.R. § 3.309(e). However, given that the Appellant had identified the possibility that ALL was a B-cell leukemia, the Board deemed it necessary to obtain a medical opinion addressing whether this fit the definition of a type of leukemia enumerated under the regulation. In September 2018, the Board requested an independent medical opinion regarding the specifics of the Veteran's diagnosis, as well as whether ALL is considered a chronic B-cell leukemia. In a September 2018 response, Dr. B.D. reported that there was no basis to give the Veteran a diagnosis of ALL. Noting that this opinion did not adequately respond to the Board's questions and instructions, in May 2019, the Board remanded the claim to obtain a new medical opinion from an oncologist. Once again, the Board specifically requested that the reviewing examiner assume the Veteran did have a diagnosis of ALL in addressing whether the possible ALL documented in the Veteran's medical records was a chronic B-cell leukemia. In May 2020, VA obtained a new medical opinion. There, the examiner stated that the Veteran's death certificate established that the Veteran had AML, which was not the same as ALL. Thus, according to the examiner, the question of whether ALL could be classified under the heading of rare B-cell leukemias was not pertinent to this case. The examiner, who was not an oncologist, consulted with an oncologist and quoted the oncologists response that "acute lymphoblastic leukemia is an entirely different condition from chronic lymphocytic leukemia." In its September 2020 decision, the Board determined that the medical opinion had not complied with the Board's remand instructions. First, the examiner had not answered the Board's questions, as requested. Second, the review of the Veteran's file was not performed by an oncologist, as instructed, and although the examiner consulted with an oncologist, there was no indication as to whether the oncologist had reviewed the specifics of the Veteran's file. Because of these due process deficiencies, the Board once again remanded the claim to obtain an adequate medical opinion. In April 2021, a new examiner reviewed the Veteran's file and addressed the Board's questions. The examiner opined that, assuming the Veteran was diagnosed with ALL, and assuming that the Veteran's ALL was a B-cell type ALL, it was still less likely than not that the Veteran's ALL was a chronic B-cell leukemia. By way of rationale, the examiner explained that, even if the Veteran's ALL is a B-cell type ALL, this is still a distinct and separate condition from a Chronic B-cell leukemia. According to the examiner, in diagnosing a Chronic B-cell leukemia, bone marrow biopsy and peripheral smears would yield more mature cells compared to ALL. The clinical course of Chronic B-cell leukemia is a slower malignancy compared to ALL, which has a more rapid progression. The examiner continued to explain that Chronic B-cell leukemias are classified under CLL, not ALL. The morphology and cell types of these cells on pathological exams are clearly distinct and considered a separate condition. CLL is called chronic because the B-cells involved are mature cells. In B-type ALL, to include the Veteran's assumed ALL, the pathology shows an immature type of cells called stabs. Thus, the examiner concluded, simply having the B-cell noted in the diagnosis does not inherently make these conditions similar. The VA presumptive condition for herbicide agent exposure is specifically Chronic B-cell leukemias. By definition and description of the pathological criteria required for Chronic B-cell leukemia, immature cells on the bone marrow smear, to include those noted on the Veteran's September 1994 bone marrow smear, does not qualify for a diagnosis, and is not considered as Chronic B-cell leukemia. The April 2021 examiner's opinion addressed the Board's open questions and was supported by adequate and thorough rationale. However, the April 2021 examiner's specialty was noted as internal medicine, not oncology. As a result, in July 2021, the AOJ obtained an addendum opinion from an examiner who was an oncologist. The July 2021 examiner confirmed the April 2021 examiner's opinion. The July 2021 examiner provided a thorough explanation of the various types of B-cell and T-cell leukemias. The July 2021 examiner then concluded, "Simply put, the natural history of chronic B-cell leukemias does not include evolution to ALL of any type." By its very nature as an acute leukemia, the July 2021 examiner explained that "ALL can NOT be considered a 'chronic B-cell leukemia.'" The examiner noted that this conclusion was consistent with the internet research provided by the Appellant. The Board considers these opinions, in combination, to satisfy the Board's prior remand instructions. Moreover, the opinions are supported by sufficient medical rationale and are therefore considered adequate. Based on these opinions, the Board must find that service connection for leukemia for the purpose of retroactive benefits is not warranted. As was previously discussed, because this claim arose from a Nehmer review, service connection for retroactive benefits is effectively dependent on whether the Veteran had a disease that is listed under 38 C.F.R. § 3.309(e). Thus, service connection in this case hinges on whether the Veteran had a diagnosis of hairy cell leukemia or a Chronic B-cell leukemia. As the April and July 2021 examiners explained, even assuming that the Veteran's diagnosis was ALL and was a B-cell form of ALL, this would not be classified as a Chronic B-cell leukemia. This is because the development of ALL and the types of B-cells involved in that development are medically distinct from that of CLL or other Chronic B-cell leukemias. Although the Board is sympathetic to the claims of the Appellant, as well as the claims of the Veteran prior to his death, that ALL and/or AML should be considered presumptively linked to herbicide agent exposure, the Board has no discretion in that regard. Application of 38 C.F.R. § 3.309(e) is statutorily limited to those diseases explicitly identified by the Secretary. Moreover, review of the Appellant's claim under the considerations of direct service connection is not available as the claim arose under Nehmer review. Therefore, as the preponderance of the evidence is against a finding that the Veteran was diagnosed with a disease enumerated under 38 C.F.R. § 3.309(e), the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for the cause of the Veteran's death, for the purpose of retroactive benefits Entitlement to dependency and indemnity compensation (DIC), is provided when a disability incurred in, or aggravated by, active service was the principal or contributory cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Entitlement is determined under the same criteria used to establish service connection contained in 38 U.S.C. Chapter 11. 38 U.S.C. § 1310. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Here, the Veteran's death certificate demonstrates that the immediate cause of the Veteran's death was nocardia pneumonia. This condition was due to a consequence of immunosuppression, status post bone marrow transplantation, acute myelogenous leukemia, and subarachnoid hemorrhage. At the time of his death, the Veteran was not service connected for any disabilities. As it pertains to this claim, entitlement to service connection for the cause of the Veteran's death was specifically intertwined with the claim of entitlement to service connection for leukemia. As the Board has determined that entitlement to service connection for leukemia is not warranted under the provisions of 38 C.F.R. §§ 3.307 and 3.309, service connection for the cause of the Veteran's death as due to leukemia is also not warranted. Indeed, the Appellant has not contended that nocardia pneumonia or subarachnoid hemorrhage are related to the Veteran's service itself. To the extent that the Appellant has contended that immunosuppression and status post bone marrow transplantation are related to the Veteran's leukemia, those issues have been resolved with the Board's denial above. As was addressed in the introduction to the Board's May 2019 decision, the Appellant offered testimony at her Board hearing concerning an alternate theory of entitlement for DIC under the provisions of 38 U.S.C. § 1151, based on negligent VA care. The Appellant specifically related the claim of negligent VA care to the Veteran's immunosuppression, subarachnoid hemorrhage, and eventual diagnosis of nocardia pneumonia. However, as the Board noted in its May 2019 decision, the AOJ has already addressed and denied the Appellant's 1151 claim in an unappealed May 2, 2016 letter, based on a finding that the Appellantas an adult childwas ineligible for DIC. Thus, to the extent that the Appellant re-asserted entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151 in testimony to the Board, the Board has no legal jurisdiction over that claim. (Continued on Next Page) Accordingly, the preponderance of the evidence is against a finding that service connection is warranted for the cause of the Veteran's death, for the purpose of retroactive benefits. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.