Citation Nr: 22019534 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 14-38 830A DATE: April 1, 2022 REMANDED Entitlement to Dependency and Indemnity Compensation based on service connection for the cause of death is remanded. REASONS FOR REMAND Entitlement to Dependency and Indemnity Compensation based on service connection for the cause of death is remanded. The Veteran had active military service from January 1983 to June 1985 with additional periods of service thereafter. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to Dependency and Indemnity Compensation (DIC) based upon service connection of cause of death. The Veteran passed away in December 2012 and the Appellant is the Veteran's surviving spouse. This claim was previously before the Board in September 2018, November 2019, and June 2020. The Board again finds that remand is necessary. The Veteran's cause of death was chronic lymphocytic leukemia (CLL). 03/14/2013, Death Certificate. The appellant contends that the Veteran's CLL was the result of his exposure to toxic and/or hazardous materials during his active service, specifically during his service at Fort McClellan. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The term "active service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of inactive duty training (IDT) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). With respect to service in the National Guard, basic eligibility for veterans' benefits requires the appellant to have been ordered into federal service by the President of the United States under 10 U.S.C. §§, 12301, 12401 or to have performed "full time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, 505. See e.g., Allen v. Nicholson, 21 Vet. App. 54, 58 (U.S. 2007). For the purposes of determining entitlement to DIC based upon service connection of cause of death, the Veteran's CLL satisfies the "current disability" element required to show entitlement to service connection. 38 U.S.C. §§ 1131, 1310. Accordingly, what remains to be demonstrated is that the Veteran suffered an injury during an eligible period of service that resulted in his CLL. Establishing one or more of these elements have been the subject of the Board's last three remands. Most recently, in June 2020 the Board directed that the RO take steps to verify the nature and circumstances of the Veteran's period of service; take steps to verify the Veteran's exposure to hazardous material during his periods of service; and obtain a VA medical opinion as to the relationship between the claimed exposures and the Veteran's CLL. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has been substantial compliance with some of its June 2020 remand directives, but not others. In June 2020 the Board directed that the RO verify the dates and locations of all of the Veteran's period(s) of Active Duty, Active Duty for Training (ACDUTRA), Inactive Duty for Training (IDT), Active Duty for Special Work (ADSW), and/or any other periods of service. Copies of the Veteran's military personnel records including a September 1989 Report of Separation reflecting the Veteran's separation from the Illinois National Guard and assignment to an Army Reserve Control Group, and a January 1993 discharge from the U.S. Army Ready Reserve. 12/15/2020, Military Personnel Records, pp. 5, 6. Additional records obtained pursuant to this directive are discussed further below. The Board finds there has been substantial compliance with this remand directive. The Board further directed that the RO should attempt to verify the appellant's claim that the Veteran was exposed to toxic or hazardous materials during his periods of service. The RO was directed that such attempts should include, but not be limited to, submitting requests to the Modern Military Branch National Archives Administration and Joint Service Records Research Center, and/or any other appropriate repository. The Board acknowledges that copies of the Veteran's military personnel records were obtained, as well as a copy of a 1979 Environmental Impact Report pertaining to Fort McClellan. However, the record reflects the RO made requests to the Military Records Research Center of the National Archives. That institution responded by rejecting the requests "because the circumstances of exposure were not provided." The record does not reflect that any attempts were made to address the deficiencies in the request. Accordingly, the Board finds that there has not been substantial compliance with its June 2020 remand directives. On remand, the RO should respond to the directions from that institution regarding adequacy of records requests and, as appropriate, resubmit their requests. In this regard, the RO's attention is directed to evidence received in March 2013 in the form of handwritten records labeled "NBC Team Training, Read and Report RAD Dosages" reflecting the Veteran's participation in training involving radiation exposure. 03/14/2013, Military Personnel Records. All efforts associated with these attempts should be documented in the claims file. In June 2020 the Board also directed that the RO obtain a VA medical opinion addressing the nexus element of the appellant's claim. A VA Examination was obtained in July 2021. The examiner returned a negative nexus opinion, citing, in part, "no documented exposures having occurred during service which are well-established primary etiologies of CLL." 07/27/2021, C&P Exam, p. 2. The Board finds this response inadequate. First, as the RO had not demonstrated substantial compliance with the Board's remand directives concerning verification of exposure, no medical opinion relying on such inadequate efforts can be considered sufficient. Further, the examiner's opinion reflects the application of an inappropriate standard. In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Further, service connection may be warranted where a disability is aggravated by the circumstances of a Veteran's service. Thus, the question is not whether the Veteran was exposed to materials which are "well-established primary etiologies of CLL", but whether it is at least as likely as not that the Veteran's CLL was proximately caused or aggravated by an in-service exposure to hazardous materials. Accordingly, a new VA medical opinion is required that is consistent both with the applicable law generally, and the terms of this remand specifically. The appellant contends that the Veteran's CLL was the result of his exposure to toxic and/or hazardous materials during his active service, specifically during his service at Fort McClellan. As referenced above, in adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The Board notes that it must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board's authority to do so, however, is limited by the principle that it may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds the following evidence highly probative of the question of the Veteran's exposure to live nerve agents and the nature and circumstances of his service from January 1988 to March 1988. The Veteran served as a Nuclear-Biological-Chemical (NBC) non-commissioned officer (NCO) in the Illinois National Guard, from at least July 1987 to February 1989. 12/15/2020, Military Personnel Records, pp. 32, 49. The Veteran served on "full time training duty" (FTTD) as a Nuclear-Biological-Chemical (NBC) non-commissioned officer (NCO) from January 1988 to March 1988. 12/15/2020, Military Personnel Record, p. 49. The Veteran completed "toxic agent training" at the Chemical Decontamination Training Facility (CDTF) at Fort McClellan, Alabama in March 1988. 03/14/2014, Military Personnel Records, p. 1. The Board has received evidence produced by the Department of Defense concerning the history of Fort McClellan and its status as the site of the Chemical Decontamination Training Facility (CDTF) where "chemical soldiers worked with live nerve agents." 05/28/2014, Military Personnel Record. In March 2014 VA received a piece of February 1988 correspondence from the Veteran to the appellant in which he described participating in "live agent" chamber training. 03/14/2014, Third Party Correspondence, p. 3. The Board affords this correspondence a high degree of credibility, in light of its contemporaneity with the subject matter of the instant claims; its consistency with other evidence of record regarding the nature of the Veteran's service; and the lack of bias or personal interest present at the time the correspondence was written. See e.g., Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991), Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). As noted above, basic eligibility for veterans' benefits requires the appellant to have been ordered into federal service by the President of the United States under 10 U.S.C. §§, 12301, 12401 or to have performed "full time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, 505. See e.g., Allen v. Nicholson, 21 Vet. App. 54, 58 (U.S. 2007). 32 U.S.C. §§ 504 and 505 provide for members of the National Guard to attend "schools conducted by the Army" and/or "be attached to an organization of the branch of the Army corresponding to the organization of the Army National Guard to which the member belongs, for routine practical instruction at or near an Army post during field training or other outdoor exercise." The Board finds that the evidence is at least in equipoise as to whether the Veteran's period of FTTD from January 1988 to March 1988 falls within the type of service contemplated by §§ 504 and 505. Accordingly, the Board concludes that the Veteran's period of service from January 1988 to March 1988 constitutes an eligible period of service for the purposes of determining eligibility for service connection and, by extension, DIC. Thus, the Board finds that the Veteran was exposed to live nerve agents during a period of active service from January 1988 to March 1988. On remand, a VA medical opinion that adequately addresses whether it is at least as likely as not that such exposure proximately caused or aggravated the Veteran's CLL should be obtained. In so finding, the Board is careful to note that it is making no other findings, affirmative or negative, with respect to any other element of the appellant's claim, to include whether or not the Veteran was exposed to hazardous materials other than live nerve agents; and/or whether any other period of service is a period of eligible service within the meaning of 38 U.S.C. § 101 (24) and 38 C.F.R. § 3.6 (a). The Board acknowledges that prior remands have discussed assertion of exposure to hazardous materials other than live nerve agents, specifically herbicide agents, radiation, water contamination that created a pH range of 10.9 to 12, Sr90, Co-60, Cs137, and/or mustard gas. To date, the Board has made no formal finding regarding these assertions. However, to the extent the Board's prior discussion may have implied positive finding of exposure to hazardous materials other than live nerve agents, the appellant should be afforded an opportunity to respond before any future Board findings on this point. On remand, the appellant should be afforded an opportunity to review this remand and respond. See e.g., Smith v. Wilkie, 32 Vet. App. 332, 334 (U.S. 2020) The matters are REMANDED for the following action: 1. Make an additional attempt to verify the appellant's claims regarding exposure to hazardous materials at Fort McClellan, to include herbicide agents, radiation, water contamination that created a pH range of 10.9 to 12, Sr90, Co-60, Cs137, and/or mustard gas by request to the Military Records Research Center of the National Archives. 2. Following the completion of remand directive 1, obtain a VA medical opinion regarding whether it is at least as likely as not that the Veteran's CLL was proximately due to, or aggravated by: (a.) Exposure to live nerve agents at Fort McClellan between January 1988 and March 1988. The examiner should acknowledge that for the purposes of their opinion, exposure to live nerve agents at Fort McClellan between January 1988 and March 1988 is conceded. (b.) Exposure to any other hazardous materials, to include herbicide agents, radiation, water contamination that created a pH range of 10.9 to 12, Sr90, Co-60, Cs137, and/or mustard gas, as verified by the RO pursuant to remand directive 1. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. 3. Following the completion of Remand Directives 1 - 2 the RO should readjudicate the issues on appeal. If the benefits sought remain denied, the appellant and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.