Citation Nr: 21011986 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 09-47 653 DATE: March 3, 2021 ORDER Dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in February 2008 from multiple myeloma, with coronary artery disease, acute myocardial infarction, and respiratory failure also contributing to his death. 2. At the time of the Veteran’s death, he was not service-connected for any disabilities. 3. During his active military service, the Veteran was stationed in Germany and was not exposed to any herbicides. 4. The evidence does not establish that the Veteran’s death was causally related to his active military service, to include the claimed benzene exposure. CONCLUSION OF LAW A disability of service origin did not cause or contribute substantially or materially to cause the Veteran’s death. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1131, 1137, 1310, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1959 to November 1962. The Veteran died in February 2008. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Contentions The Appellant claims that the Veteran’s death is related to his military service. She maintains that the Veteran developed multiple myeloma, which ultimately resulted in his untimely death, due to his in-service exposure to benzene as a heavy vehicle driver. Specifically, the Appellant contends that the Veteran drove a fuel truck, siphoned fuel, and transferred fuel during his military service, duties which may involve a high level of benzene exposure. The Appellant also asserts that the Veteran had exposure to Agent Orange during service, which resulted in his multiple myeloma. Procedural Considerations In March 2013, the Appellant was afforded her requested Board hearing before the undersigned Veterans Law Judge (VLJ) at the local RO (Travel Board hearing). A copy of the hearing transcript has been associated with the claims file. In May 2013, the Board remanded this appeal for further development. In February 2016, the case was returned to the Board. Upon reviewing the claims folder, the Board referred the claim to a specialist for an advisory medical opinion. See 38 U.S.C. § 7109(a) (West 2014); 38 C.F.R. § 20.901 (2016); see also generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). This opinion was obtained in May 2016 and is included in the claims file. In December 2016, the Board denied DIC based on service connection for the cause of the Veteran’s death. The Appellant appealed the Board’s December 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2017, the Appellant and VA’s Office of General Counsel filed a Joint Motion for Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board’s December 2016 decision. The case was then remanded by the Board in August 2018 for action pursuant to the Joint Motion. Pursuant to the December 2017 Joint Motion and August 2018 Board remand, in April 2019 the agency of original jurisdiction (AOJ) requested the Veteran’s entire record from the National Personnel Records center in an attempt to confirm the Veteran’s alleged benzene exposure. They responded with the Veteran’s official military personnel file (OMPF) later that month. These records continue to show that the Veteran completed basic and advanced training at Fort Benning. He then was assigned as a motor messenger and assistant heavy truck driver in Europe. He was discharged in November 1962. The OMPF did not show that the Veteran was directly exposed to benzene during military service. As such, no further opinions were requested. Also, pursuant to the December 2017 Joint Motion/August 2018 Board remand, an additional attempt was made to obtain the Veteran’s service treatment records which yielded a negative response and the Appellant was informed of this fact as well as given the opportunity to submit any records she may have in her possession which also yielded a negative response. In November 2019, the Board again denied DIC based on service connection for the cause of the Veteran’s death. The Appellant appealed the Board’s November 2019 decision to the Court. In September 2020, the Appellant and VA’s Office of General Counsel filed another Joint Motion, in which both parties to the Joint Motion requested that the Court vacate and remand the Board’s November 2019 decision. Significantly, the September 2020 Joint Motion found that the November 2019 Board decision did not consider arguments made by the Appellant regarding improper development of the claim. Specifically, the May 2013 Board remand directed a VA examiner to provide a medical opinion as to whether the Veteran’s “presumed” exposure to benzene resulted in his development of multiple myeloma. As discussed in more detail below, while a January 2015 VA examiner opined that the Veteran developed multiple myeloma due to benzene exposure during his active service, the RO requested an addendum opinion, noting that there was actually no evidence of in-service benzene exposure. As such, in a subsequent January 2015 VA addendum opinion, the examiner changed his opinion and found that the Veteran’s multiple myeloma was not due to benzene exposure and was, instead, due to the Veteran’s 30-pack year smoking history. The Appellant contends that the January 2015 VA addendum opinion was biased and violated the Court’s holding in Colayang v. West, 12 Vet. App. 524, 530 (1999) because the RO’s questions suggested an answer and impermissibly narrowed the scope of the examiner’s inquiry, including the RO’s instruction to the examiner that there was no evidence of exposure to fuel despite the Board’s remand instructions to presume some exposure to benzene. Initially, the Board finds that it was error to refer to the Veteran’s alleged benzene exposure as “presumed” in the May 2013 Board remand as no presumption can or could have been made at that time. Furthermore, VA has discretion to determine when additional information is needed to adjudicate a claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran’s claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). In this case, the Board finds that additional development was required in order to make a decision in this matter. As will be discussed in detail below, the initial favorable opinion was rendered without the benefit of reviewing all of the evidence of record. An objective opinion based on all evidence of record was therefore required in order to clarify whether the Veteran’s multiple myeloma was related to his alleged benzene exposure or something else. The RO did not seek out a negative opinion where only positive evidence existed, but sought clarification where medical opinion of record did not consider VA medical evidence which was pertinent to the claim. As such, the Board finds that there was no improper development of the claim as argued by the Appellant and will proceed with adjudicating the claim with consideration of all pertinent evidence. Legal Criteria 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. § 1310; 38 C.F.R. § 3.312(a). A service connected disability will be considered the principal (primary) 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 – e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). At the time of his death, the Veteran was not service-connected for any disabilities. Thus, within this framework, the Board must consider the laws that otherwise govern the issue – i.e., establishing service connection for a disorder. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including malignant tumors such as multiple myeloma, will be presumed if they manifest to a compensable degree within one year following the active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases (to include multiple myeloma) shall be service-connected if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, a presumption is not the sole method for showing causation. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis The Veteran’s death certificate states that the Veteran died at St. Joseph Medical Center and identifies the cause of death as being multiple myeloma, with coronary artery disease, acute myocardial infarction, and respiratory failure also contributing to his death. While the Veteran’s service treatment records are unavailable, service personnel records are available, and they confirm that the Veteran was a heavy vehicle driver and that he served in Germany for over two years. The personnel records do not specifically document whether the Veteran was exposed to benzene during his active military service. The record also indicates that he performed duties of a utility helper, with his personnel records indicating a related civilian occupation of Water Department pipeline helper. There is no evidence that the Veteran drove a fuel truck, siphoned fuel, transferred fuel, or performed duties other than driving a truck during his active military service. The records do not document that the Veteran transported JP-5 (the jet fuel used in Naval aircrafts). The Veteran’s active military service ended in November 1962. The first post-service documentation of multiple myeloma was in the VA medical records dated from November 2005, which diagnose the Veteran with multiple myeloma. Again, the Veteran’s active duty ended in 1962. This lengthy period of 43 years between the Veteran’s discharge from service and diagnosis of multiple myeloma, without treatment for the disorder, weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). The Veteran’s post-service treatment records also document a history of smoking. In January 2015, a VA physician reviewed the claims file. He determined that, although the data was not compelling, that there was still enough evidence to suggest that benzene exposure was a risk factor for multiple myeloma. Therefore, it was his opinion that it was at least as likely as not (50 percent or greater probability) that the Veteran developed multiple myeloma due to benzene exposure during service. The physician included citations for the medical literature that he reviewed. Later in January 2015, the Veteran’s record was returned to the VA physician with additional information to consider. Based on this second review, the VA physician determined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The physician indicated that the Veteran’s death was not due to benzene exposure, but rather due to smoking. The physician reasoned that the Veteran had a thirty pack per year smoking history and smoking is a known source of exposure to benzene. The physician stated that although the Veteran drove a truck, there was no evidence that he drove a fuel truck, siphoned fuel, transferred fuel, or performed duties other than driving a truck in service. The physician also indicated that the Veteran did not transport JP-5 (the jet fuel used in naval aircrafts). Thus, he found that there was no evidence that the Veteran was definitely exposed to benzene during his active military service. The VA examiner concluded that based on the data presented to him, the predominant source of the Veteran’s exposure to benzene might have been from non-military events (i.e., smoking). In May 2015 the Appellant’s representative submitted a study that indicates that cigarette smoking does not cause multiple myeloma. Although the Appellant’s representative stated in May 2015 that the Veteran’s principle duty in Germany was hauling jet fuel, there is nothing in the record that confirms such. The Appellant submitted a VA Form 21-4138 in October 2008 in which she stated that she did not know what the Veteran had been hauling when he drove trucks in the service. The post-service VA treatment records indicate that the Veteran smoked for 40 years, and that for a time he smoked up to two packs a day. In May 2016, following a review of the claims file, a medical doctor of the VA hematology/oncology department determined that a review of the literature did not support that it was at least as likely as not (50 percent or greater probability) that the Veteran developed multiple myeloma due to in-service exposure to benzene, as claimed by the Appellant. The physician reasoned that the Veteran had a past medical history that was significant for coronary artery disease, congestive heart failure, Type II diabetes mellitus, dyslipidemia, gastrointestinal bleed, tobacco abuse, and IgG kappa multiple myeloma (13q-deletion). The physician summarized the Veteran’s post-service treatment records, and noted that the Veteran served in the U.S. Army from July 1959 to November 1962. The physician reasoned that the Veteran was a heavy vehicle driver who served in Germany for two years. His employment records did not confirm that he was hauling jet fuel, and the Veteran did not serve in the Republic of Vietnam. This medical opinion was reviewed by the VA Chief of the Medicine Care Line of the Southern Arizona VA Health Care System and the Acting VA Chief of Staff for the Southern Arizona VA Health Care System. Both VA physicians concurred with the medical opinion provided. The Board finds the negative evidence outweighs the positive on the issue of direct service connection. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the January 2015 VA examiner provided a positive medical nexus opinion initially before providing a negative medical nexus opinion. However, the Board is not persuaded by the January 2015 VA examiner’s initial positive medical opinion because it did not consider the Veteran’s in-service duties and his post-service cigarette smoking. The initial medical opinion appears to assume that the Veteran was exposed to benzene during his active military service, which has not been established by the evidence of record. In contrast, the January 2015 VA examiner’s second negative medical opinion and the May 2016 VA medical opinion considered the Veteran’s in-service duties, in addition to his post-service history of cigarette smoking and his past medical history. Further, the May 2016 VA medical opinion considered both of the January 2015 medical opinions, in addition to reviewing the claims file and the study submitted by the Appellant’s representative, prior to providing the negative nexus medical opinion. Thus, the Board assigns greater probative value to the second January 2015 VA medical opinion and the May 2016 VA medical opinion than the first January 2015 VA medical opinion. The negative evidence outweighs the positive evidence of record. As the evidence is not in equipoise, service connection is not warranted. The Appellant’s claim also cannot be granted based on continuity of symptomatology since the Veteran’s active military service. As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from 2005, over thirty years after the Veteran’s military separation. When the Veteran was first treated post-service in 2005, he did not indicate that his multiple myeloma had been present since his active military service. The evidence of record does not document continuity of symptomatology during and since the Veteran’s active military service. Thus, the Board finds that the medical evidence does not establish a “chronic disorder.” 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. The service connection claim cannot be granted on this theory of entitlement. Additionally, the Board finds that the claim cannot be granted based on presumptive service connection for malignant tumors, to include multiple myeloma. As stated above, the earliest post-service medical treatment records are dated from 2005, and the Veteran was separated from the active duty in 1962. No diagnosis of multiple myeloma was made within one year of the Veteran’s military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Lastly, the personnel records confirm that the Veteran did not serve in the Republic of Vietnam. The evidence of record does not establish that the Veteran was otherwise exposed to herbicides during his active military service. Thus, the Veteran is not entitled to the Agent Orange presumption as the evidence does not establish that he was exposed to herbicides during his active military service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). In reaching this decision, the Board has considered the Appellant’s lay statements and hearing testimony in support of her claim, in addition to the lay statements and study submitted by her representative. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). As a layperson, it is not shown that the Appellant or her representative possess the medical expertise to provide such an opinion. The only competent and credible medical opinions of record addressing the claimed relationship are negative. The VA examiners considered the lay assertions in forming their medical opinions, but ultimately provided negative nexus medical opinions. Thus, as previously stated, the medical evidence of record is only against the claim. In summary, as noted above, the Veteran was not service-connected for any disabilities during his lifetime. In addition, the Board finds that the probative evidence of record does not show that a disorder incurred in or aggravated by the Veteran’s active military service either caused or contributed substantially or materially to his death. Therefore, service connection for the cause of the Veteran’s death must be denied. The benefit-of-the-doubt rule does not apply, and the Appellant’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.