Citation Nr: 21027691 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-08 286 DATE: May 6, 2021 ORDER Entitlement to an effective date prior to December 21, 2005 for the award of Dependency and Indemnity Compensation (DIC) benefits is denied. FINDINGS OF FACT 1. In an unappealed June 2001 rating decision, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. No new and material evidence was received within one year of that decision and it became final. 2. The appellant submitted a VA Form 21-4138, Statement in Support of Claim, stating that she wished to reopen her claim for DIC benefits which was received by VA on December 21, 2005. 3. Service personnel records (SPRs) and Department of Defense (DoD) information, which were added to the Veteran's file following December 2009 and April 2011 Board Remands, were not used as a basis for the award of DIC benefits. CONCLUSIONS OF LAW 1. The criteria for reconsideration of the June 2001 rating decision have not been met. 38 C.F.R. § 3.156(c). 2. The criteria for assignment of an effective date prior to December 21, 2005 for the award of DIC benefits have not been met. 38 U.S.C. §§ 5103, 5103A, 5110(d); 38 C.F.R. §§ 3.5, 3.152, 3.400(c)(2), 3.400(r). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to November 1992. The Veteran died in November 1999. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). This claim has been subject to multiple actions by the Board and by the U.S. Court of Appeals for Veterans Claims (Court). Most recently, in December 2020, the Court vacated the Board's March 2020 decision denying the claim on appeal and remanded the claim for additional consideration. The case is again before the Board for appellate review. Effective Date The appellant has been in receipt of DIC benefits effective December 21, 2005. She asserts entitlement to an earlier effective date. The appellant filed an original claim of entitlement to service connection for the cause of the Veteran's death in January 2001. In an unappealed June 2001 rating decision, the RO denied the claim. On December 21, 2005, the appellant filed a claim to reopen the denied claim. Following development conducted pursuant to multiple Board and Court remands, the Board granted the claim in a September 2015 decision. In implementing the Board's grant, the RO assigned an effective date for the award of DIC benefits of December 21, 2005. The appellant asserts that Service Personnel Records (SPRs) obtained following December 2009 and April 2011 Board remands were used, in part, to grant service connection for the cause of the Veteran's death and, therefore, under 38 C.F.R. § 3.156(c), she was entitled to have her January 2001 claim reconsidered. For the reasons set forth below, the effective should not be changed. In December 2009, the Board remanded the appeal for additional development, to include obtaining SPRs and federal records pertaining to exposure to benzene due to oil well fires in Southwest Asia in 1991. In April 2011, the case returned to the Board. The Board remanded the Veteran's claim for additional records. SPRs and a Department of Defense (DoD) report about the Veteran's health risk due to exposure to oil well fire smoke was subsequently added to the file. The DoD concluded that the Veteran's chance of getting cancer or any other illness due to exposure to oil well fire smoke in Southwest Asia was low. In July 2014, the Board denied service connection for the cause of the Veteran's death. The Appellant appealed to the Court of Appeals for Veterans Claims (CAVC). In February 2015, the Court granted the Parties' Joint Motion for Remand (Joint Motion), the Board's decision was vacated, and the appeal was remanded to the Board for further consideration. The Joint Motion stated that January 2014 and April 2014 Veterans Health Administration (VHA) opinions were equivocal, unclear, and internally inconsistent. The Court directed the Board to consider whether service connection could be granted solely based on a July 2006 private medical opinion and, if not, to then obtain a new VA medical opinion. In September 2015, the Board granted service connection for the cause of the Veteran's death. The Board found the evidence in equipoise that AML was caused by exposure to oil well fire toxins while stationed in Southwest Asia and resolved reasonable doubt in favor of a grant of service connection. In October 2015, the Appellant was informed in writing that the RO had effectuated the grant of service connection for the cause of the Veteran's death and granted entitlement to DIC benefits effective December 21, 2005. The Appellant appealed stating that she believed she was entitled to an effective date of January 18, 2001, the date of her original claim for DIC benefits. She contended that SPRs obtained following the December 2009 and April 2011 Board Remands were used, in part, to grant service connection for the cause of the Veteran's death and, therefore, under 38 C.F.R. § 3.156(c), she was entitled to have her January 2001 claim reconsidered. In December 2018, the Board denied entitlement to an earlier effective date for the cause of the Veteran's death and specifically found that reconsideration of the June 2001 rating decision that denied the original claim was not appropriate. Specifically, the Board found that additional SPRs and DoD records added to the record since the June 2001 denial were not relevant, or a basis for, the grant of DIC benefits. The Appellant appealed that decision to the CAVC, and in September 2019 the parties agreed to another JMR. The parties agreed that a remand was necessary for the Board to address its finding that the RO in June 2001 had the information regarding the Veteran's exposure to toxins such that newly associated SPRs were not relevant. The December 2018 Board decision was then vacated, and the appeal remanded to the Board for action consistent with the Joint Motion. In March 2020, the case returned to the Board. The Board once again denied an earlier effective date for the award of DIC benefits. In June 2020, the parties entered into another JMR. The parties agreed that the Board did not adequately address the Board's September 2015 finding of fact that stated "[i]t is as likely as not that AML had its onset as a result of exposure to oil well fires during service." The parties also agreed that the Board did not address its April 2011 remand order instructing the regional office to "verify whether the Veteran was exposed to oil well fires while deployed to Southwest Asia in 1991" and subsequent addition of SPRs and the DoD report, and how this factors into its conclusion that evidence of exposure to benzene and other toxins from oil well fires in service was already of record prior to receipt of the SPRs and DoD report. 38 C.F.R. § 3.156(c) states: (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. The Court has further clarified the meaning of 38 C.F.R. § 3.156(c): "[W]hen an initial claim is denied because of a lack of evidence of an in-service injury, but is later granted based in part on subsequently acquired service records establishing the in service injury and new medical evidence showing a nexus between a current disability and that in-service injury, the claimant is entitled to a retroactive evaluation of the disability to assess a proper effective date which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted." Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). In another case, the Federal Circuit upheld the Board's determination that reconsideration was not appropriate because new SPRs added to the file were not relevant when the Board determined that the information in the newly-added records "was already known, acknowledged, and undisputed" in the original RO decision and the SPRs "did not purport to affect the outcome of that decision." Kisor v. Shulkin, 869 F.3d 1360, 1368 (Fed. Cir. 2017). The Federal Circuit stated that "[t]he Board's ruling was thus based upon the proposition that, as used in § 3.156(c)(1), 'relevant' means noncumulative and pertinent to the matter at issue in the case. The Board's interpretation does not strike us as either plainly erroneous or inconsistent with... VA's regulatory framework." Id The appellant here contends that newly-received service personnel records confirming her husband's exposure to oil wells are relevant under 38 C.F.R. § 3.156(c) such that reconsideration of her claim is warranted. However, the Veteran's exposure to toxins were not previously in dispute. In June 2001, the RO issued a rating decision that denied service connection for the cause of the Veteran's death. The rating decision acknowledged the Veteran's service in the Gulf War and denied the Appellant's claim because the Veteran's lymphatic and hemic systems were found to be normal at the time of separation. Thus, the Veteran's Persian Gulf status was never in dispute and any personnel records received after the June 2001 rating decision are not "relevant" under 38 C.F.R. § 3.156(c). Prior to the post-remand development, the record already included lay statements from the Veteran's wife describing her husband's exposure to oil wells, internet articles describing toxins in the Persian Gulf, and a medical opinion from 2006 that specifically opined that the Veteran's exposure to oil well fires led to his development of AML. Therefore, prior to the additional records being added to the claims file, it was already known, acknowledged, and undisputed that the Veteran served in the Gulf and was exposed to toxins. As such, the additional records proved to be cumulative and were not pertinent to the Board's September 2015 decision. After a review of the record, the Board finds that the appellant is not entitled to reconsideration of her January 2001 claim because the SPRs and DoD information added to the file after the December 2009 and April 2011 Board Remands did not affect the outcome of the Board's September 2015 decision. This information was already known, acknowledged, and undisputed. The Board acknowledges that these post-remand records provided greater detail to the Veteran's toxic exposure, but prior to these records being associated with the Veteran's claims file, the Veteran's service in the Persian Gulf was verified and his exposure to toxins was not in dispute. At no point during the appeal process did VA dispute that the Veteran served in Southwest Asia or that he was exposed to toxins while there. Instead, the initial June 2001 decision denied service connection for the cause of the Veteran's death because there was no evidence that AML was caused by service or began within one year of service separation. The record further reflects that the documents acquired following the Board's remands were not the basis for the grant. Specifically, the US Army study did not form the basis for the Board's September 2015 decision to award benefits because this study determined that the Veteran's risk of developing cancer was low. Moreover, the record shows that a VHA medical examiner was unable to conclusively determine that the Veteran developed AML due to his service in the Gulf after reviewing the post-remand information. Furthermore, these additional records were shown to be duplicative because the Veteran's private doctor already opined in 2006 that the Veteran's exposure to benzene, which he stated is an occupational danger for oil and gas workers caused him to develop AML. Thus, reconsideration of the June 2001 decision is not appropriate because the Board did not rely on the 2014 VHA medical opinion based on the post-remand documentation or the US Army study, and instead granted the Appellant's claim based on the 2005 and 2006 private medical opinions which were based on independent research. The Board acknowledges that the records were considered in the current appeal; however, the fact that the Veteran was exposed to toxins in the Gulf was not in dispute, the presence of a positive nexus opinion that linked the Veteran's death to his military service was the issue at hand. Accordingly, based on the above stated reasons, the Board finds that the effective date for the grant of service connection for the cause of the Veteran's death is determined by the regulations governing the effective date for DIC benefits. Because reconsideration is not appropriate in this case and the grant of service connection for the cause of the Veteran's death was not based on service records newly-added to the file after the original denial of benefits, the usual rules for determining the effective date of entitlement to DIC apply. For claims involving service-connected death after separation from service, if an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred; otherwise, the effective date for DIC is the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). For reopened claims, the effective date is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The Veteran died in 1999 but the Appellant's current claim for DIC was not received until December 21, 2005. Therefore, the effective date cannot be the first day of the month in which the death occurred. As this is a reopened claim, the effective date is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. The appellant's current claim for DIC benefits was received by VA on December 21, 2005. Entitlement arose in 1999 when the Veteran died. The later date is, therefore, the date the claim to reopen was received. The effective date has been correctly established as December 21, 2005. An earlier effective date for the award of DIC benefits is not warranted and the claim must be denied. September 2019 JMR terms The parties agreed that the Board erred in March 2020 because it did not adequately address the September 2015 finding of fact in which the Board stated that"[i]t is as likely as not that AML had its onset as a result of exposure to oil well fires during service." In addition, the parties agreed that the Board did not address its April 2011 remand order instructing the regional office to "verify whether the Veteran was exposed to oil well fires while deployed to Southwest Asia in 1991" and subsequent addition of SPRs and the DoD report, and how this factors into its conclusion that evidence of exposure to benzene and other toxins from oil well fires in service was already of record prior to receipt of the SPRs and DoD report. In this regard, following the Board's April 2011 Remand, the record reflects that in June 2011, the Assistant Secretary of Defense, citing a study by the U.S. Army Public Health Command, responsible for assessing the environmental health risk for deployed forces, namely, the Environmental Surveillance Integration Program, reported that the Veteran was in the Southwest Theater from October 1, 1990, to April 12, 1991. The report shows that during the time the Veteran was in the Southwest Theater, the oil well fires were burning for 70 days, the Veteran was within the boundaries of the oil fire smoke for six days, and that the Veteran had a low, calculated risk for developing cancer from the Gulf War oil fire smoke. Subsequently, the Board requested a VHA opinion to provide an analysis of the nature and etiology of the Veteran's AML. In a January 2014 opinion, a VHA physician explained that it was highly atypical for a diagnosis of AML at the Veteran's age of 33 (only 4.7% of leukemia cases occur in age 20 to 34). The VHA physician stated that AML is a rapidly progressive cancer that comes to medical attention within weeks to a few months and, as such, the Veteran would not have been expected to have any symptoms of AML during or soon after deployment, but only a few months prior to the diagnosis in the fall of 1998, which occurred in the Veteran's case, and that the symptoms described by the Appellant prior to 1998 were suggestive of a chronic multi-symptom illness, not AML, and that the Veteran's presenting symptoms in November 1998 were typical of symptoms experienced by patients presenting with AML. The VHA expert stated that the pathogenesis of AML was not completely understood. The expert cited to several studies and stated that the epidemiological evidence did not support an association between exposure to oil well smoke during the Persian Gulf War and AML. The VHA physician did note that it was not biologically implausible that exposure to oil well fire smoke may have contributed to AML, but the bulk of the epidemiological evidence failed to show a strong association between deployment in the Persian Gulf and the incidence of cancer. The VHA physician also noted that the current state of scientific evidence was recognized to be incomplete with many areas of uncertainty and the epidemiological data did not completely rule out the possibility that exposure to oil well smoke may have in the Veteran's case contributed to development of AML. The examiner stated that this was especially true considering the Veteran's age when he was diagnosed, the absence of any other risk factors, and the recognized association between AML and exposure to chemicals such as benzene. In an addendum in April 2014, the VHA physician stated that the best epidemiological evidence, including the US Army Public Health Command report, did not support an association between exposure to oil well smoke during the Persian Gulf War and AML and that the risk of developing AML due to oil well fire exposure in this case would be nil. The VHA physician did recognize the uncertainties and limitations of the data that was the basis for US Army Public Health Command report as well as a biological plausibility. On the other hand, in December 2005, Dr. B.A.A. stated that the Veteran was exposed to multiple chemical agents during the Gulf War and the agents have been linked to hematological malignancies, including AML, and could have contributed to the Veteran's illness. In addition, the record reflects that in 2006, the Veteran's private doctor submitted a medical opinion that addressed the nature and etiology of the Veteran's cancer. Dr. C.N.B. opined that AML was as likely as not due to the Veteran's exposure to toxins to include benzene and organophosphates. In support of the opinion, Dr. C.N.B. explained that there were no other plausible risk factors for AML, AML was acquired at a young age, he was exposed to known AML carcinogenic agents while in the Gulf, and even intense short term exposure increases the odds for AML. The physician referred to two studies addressing occupational exposure dangers to petroleum workers and the hazards related to benzene exposure. In sum, the Board based its finding that the Veteran developed AML due to oil well fires not on information provided following the Board's remands, but on the 2006 medical opinion provided by Dr. C.N.B. Specifically, the September 2015 decision acknowledged that the U.S. Army study determined that the Veteran had a low risk of developing cancer, and this piece of evidence proved not to be persuasive in the award of DIC benefits. Moreover, the record reflects that the VHA medical opinion which was based on the post-remand evidence was inconclusive and the VHA examiner was unable to provide a medical nexus based on this evidence. Furthermore, the September 2015 Board decision found that Dr. C.N.B's medical opinion was a "particularly persuasive" piece of evidence and the Board did not specifically state that it assigned probative weight to the VHA medical opinion when it rendered its opinion; thus, the Board finds that it is not possible to conclude that the Board relied on an inconclusive VHA opinion when it awarded DIC benefits. (Continued on the next page) Therefore, the Board finds that the post-remand development was cumulative of the evidence of record and proved not to be "relevant" to the September 2015 Board decision. Consequently, the September 2015 Board decision did not rely on this information when it granted the Appellant's claim. Thus, the Board finds that reconsideration of the original January 2001 claim is not warranted. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.