Citation Nr: 21039968 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-19 284 DATE: July 1, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT A service-connected disability is not shown to be a principle or contributory cause of the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1951 to January 1953. Unfortunately, the Veteran died in September 1999. The Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 determination by the VA Pension Management Center in St. Paul, Minnesota. See September 2014 Notice of Disagreement (NOD); April 2015 Statement of the Case (SOC); June 2015 Substantive Appeal (VA Form 9). In January 2019, the Appellant and her son-in-law testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. In a May 2021 letter, the Board notified the Appellant that the VLJ who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7101(c), the Appellant was offered an opportunity to testify at a hearing before a different VLJ. The letter noted that if a response was not received within 30 days, the Board would assume that the Appellant did not wish to have another Board hearing and would proceed accordingly. The Board did not receive a response from the Appellant. Therefore, the Appellant's claim is being adjudicated by the undersigned VLJ. In April 2019, the Board remanded the matter for further development, to include obtaining an opinion from a VA examiner regarding the cause of the Veteran's death. See April 2019 Board decision. After further development, the Agency of Original Jurisdiction (AOJ) continued its denial of the Appellant's claim. See April 2020 Supplemental Statement of the Case. The case returned to the Board for review, and in June 2020, the Board remanded the matter in order to obtain a clarifying addendum opinion. The appeal has returned to the Board for review. The Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in August 2019, pursuant to the April 2019 Board remand, the AOJ sent the Appellant a request to identify and/or submit any outstanding private treatment records along with releases relevant to her claim for the cause of the Veteran's death. The AOJ informed the Appellant that they specifically needed releases for Whittier Hospital in Los Angeles, California for the years 1998 and 1999 and for Dr. B in Montebello, California prior to 1998. The Appellant did not respond to the request, submit the private treatment records requested or provide any release(s) for requested records. The duty to assist is not a one-way street. If an Appellant desires help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Appellant is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227(2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (b)(1). Entitlement to service connection for the cause of the Veteran's death is denied. The Appellant contends that the Veteran's fatal chronic granulocytic leukemia onset in-service and that it was manifested by chronic liver problems (i.e., jaundice) therein. See January 2019 Board hearing transcript. Dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C. § 1310; Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. The Veteran's death certificate reflects that his cause of death was accelerated phase chronic granulocytic leukemia, due to chronic granulocytic leukemia. During the January 2019 Board hearing, the Appellant testified that the Veteran was first diagnosed with leukemia in approximately May 1998. She testified that she married the Veteran in December 1961 and that they met approximately 4 years prior. She also testified that prior to 1998 she observed that the Veteran had flu-like symptoms, yellow eyes and he said that he felt like he didn't have a brain. She attributed this to his having "yellow jaundice" in-service; that a family physician had treated him for yellow jaundice symptoms and "something to do with [his] blood" in 1968; and that these symptoms continued until his leukemia diagnosis in 1998. At the time of the Veteran's death, he had not established service connection for any disabilities. Turning to the evidence of record, the vast majority of the Veteran's service treatment records (STRs) have been deemed as unavailable for review (fire-related); however, the January 1953 separation Report of Medical History reflects complaints of "stomach, liver or intestinal trouble" and notes that the Veteran had been hospitalized at Camp Roberts Hospital for a "liver ailment." As previously noted, at the January 2019 Board hearing, the Appellant testified that the Veteran was first diagnosed with leukemia in approximately May 1998, which is over 4 decades after his separation from service. While the length of time between service and diagnosis of the disability which is the immediate cause of the Veteran's death is not dispositive, it is for consideration, and weighs against the claim. Further, the January 2020 VA examiner acknowledged the history of a liver ailment noted in the Veteran's January 1953 report of Medical History, and that the Appellant testified at the Board hearing that the Veteran had symptoms of fever and jaundice, chronic granulocytic leukemia, also called chronic myelogenous leukemia, chronic myeloid leukemia and CML is a slow-growing cancer caused by a rearrangement (translocation) of genetic material between chromosome 9 and 22 resulting in the increased production of myeloblasts in the blood and bone marrow. He further stated that CML is more common in adults over the age of 40, accounting for nearly 70 percent of all cases, the Veteran's age of 23 at the time of his separation from active service makes it less likely than not that his fatal chronic granulocytic leukemia onset during his active military service. The examiner then concluded that the Veteran's fatal chronic granulocytic leukemia was less likely than not incurred in or caused by his active military service, to include his in-service complaints for a liver ailment. In June 2020, the Board remanded the matter to obtain an addendum opinion. The Board instructed the examiner to consider and discuss whether the Veteran's liver ailment noted in service and the Appellant's testimony that the Veteran was treated for yellow jaundice and "something to do with [his] blood" were signs or symptoms of his leukemia which was later diagnosed in 1998. The February 2021 VA examiner noted that he had reviewed all the available records. The VA examiner then opined that the Veteran's granulocytic leukemia was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner considered the liver ailment noted in 1953 and the Appellant's lay statements and opined that the Veteran's chronic granulocytic leukemia is likely due to a genetic change of the leukocytes in the bone marrow and not due to his in-service liver ailment. The examiner further stated that there are no medical records which support the Appellant's lay assertions that the Veteran's treatment for yellow jaundice and "something to do with [his] blood" were signs or symptoms of his granulocytic leukemia. The Board finds that the January 2020 and February 2021 examiners' opinions probative on the issue of whether the Veteran's chronic granulocytic leukemia is related to service and/or began in service. The combined rationale is that the Veteran's chronic granulocytic leukemia is genetic and more common in adults over the age of 40, accounting for nearly 70 percent of all cases, and the Veteran was only age 23 at the time of his separation from active service. The February 2021 VA examiner also noted that there are no medical records which support the Appellant's assertions that the Veteran's noted in-service liver ailment and his treatment for yellow jaundice and "something to do with [his] blood" were signs or symptoms of his leukemia which was later diagnosed in 1998. The examiners' combined opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Appellant believes that the Veteran's chronic granulocytic leukemia is related to an in-service injury, event, or disease. The only evidence indicating an association between the cause of the Veteran's death and his active service are the appellant's own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of chronic granulocytic leukemia are not simple questions that can be determined based on personal observation by a lay person. It is not shown that the Appellant is qualified through specialized education, training, or experience to offer a medical opinion as to the conditions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the Appellant's lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of the etiology of the Veteran's cause of death does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. Therefore, the Appellant's lay assertions that the Veteran's fatal chronic granulocytic leukemia had its onset in-service and that it was manifested by chronic liver problems (i.e., jaundice) throughout his life, is not sufficient to establish a diagnosis and/or etiology. Further, the Appellant's Board hearing testimony established that she first met the Veteran in approximately 1957, which is approximately 4 years after the Veteran's discharge from active service. Thus, the Appellant has no first-hand knowledge of the Veteran until 4 years following his discharge from active service. Consequently, the Board affords more probative weight to the January 2020 and February 2021 VA examiner's opinions, as they provide the most competent evidence of record regarding the etiology of the chronic granulocytic leukemia which caused the Veteran's death. The Board concludes that, while the cause of the Veteran's death was chronic granulocytic leukemia and evidence shows in-service reports of "stomach, liver or intestinal trouble" and hospitalization for a "liver ailment," the preponderance of the evidence weighs against finding that the Veteran's diagnosis of chronic granulocytic leukemia began during service or is otherwise related to an in-service injury, event, or disease. In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.