LEUKEMIA

MATTHEW TENNER · 2020 · Case ID: 20063174

DENIED

Summary

The Veteran served in the Army from July 1965 to May 1967. He passed away in February 2009 from cardiopulmonary arrest due to septic shock and acute myelogenous leukemia. His surviving spouse sought to reopen a claim for service connection for the cause of his death, asserting that his leukemia was due to Agent Orange exposure during his Vietnam service. The Board reopened the claim based on new and material evidence, specifically medical treatment records providing a diagnosis of acute myelogenous leukemia. However, the Board found that while the Veteran was presumed exposed to herbicides due to his Vietnam service, the evidence did not show a diagnosis of a presumptive disease or a direct link between his leukemia and service. The medical evidence indicated the leukemia was diagnosed only two weeks before his death, over 40 years after service, with no continuity of symptoms or nexus to service. The Board determined that a medical opinion was not warranted because there was no reasonable possibility it would aid in substantiating the claim. Ultimately, the Board denied service connection for the cause of death, finding the preponderance of the evidence against the claim.

Rationale

No continuity of symptoms; No nexus to service; No presumptive connection to herbicide exposure

Service Branch

ARMY

Special Benefit

DIC / CAUSE OF DEATH

Docket No.

19-20 503

Full Decision Text

Citation Nr: 20063174
Decision Date: 09/25/20 Archive Date: 09/25/20

DOCKET NO. 19-20 503
DATE: September 25, 2020

ORDER

New and material evidence has been submitted and the claim to reopen the service connection claim for cause of the Veteran’s death is granted.

Service connection for cause of the Veteran’s death is denied.

FINDINGS OF FACT

1. New and material evidence received since the last, final March 2014 rating decision that denied the service-connection claim for cause of the Veteran’s death, includes and is not limited to, treatment records, which provide a diagnosis and additional details about the Veteran’s diagnosis of leukemia.

2. The Veteran died in February 2009, and the immediate cause of his death, as certified, was cardiopulmonary arrest, due to septic shock, and also due to acute myelogenous leukemia.

3. At the time of his death, he was not service connected for any disabilities.

4. There is no probative evidence that the Veteran has been diagnosed with a presumptive disease as a result of any exposure to herbicide agents, including Agent Orange.

5. There is no probative evidence that the Veteran’s acute myelogenous leukemia is causally related to his active military service.

CONCLUSION OF LAW

1. The criteria for reopening service connection for the cause of the Veteran's death have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103.

2. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309,3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1965 to May 1967. He died in February 2009. The appellant is his surviving spouse.

This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2018 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA) Regional Office (RO) in Philadelphia, Pennsylvania.

New and Material Evidence

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers.

Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a).

The appellant’s service connection claim for cause of the Veteran’s death was last denied in a March 2014 rating decision because the RO determined that acute myelogenous leukemia is not recognized as a presumptive disease associated with herbicide agent exposure, and that accordingly, service connection for the cause of the Veteran’s death fails to show that it was related to military service. Following this decision, the appellant did not file an appeal of this decision within one year of the March 2014 rating decision. Thus, the rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

Evidence received since this March 2014 rating decision, includes and is not limited to, medical treatment records, which include and are not limited to, a February 2009 private treatment summary, which reflects a diagnosis and treatment for acute myelogenous leukemia.

This evidence is new because it had not been previously submitted and considered by VA. It is material because it provides additional details about the Veteran’s diagnosis, and it shows that
an appeal of this decision within one year of the March 2014 rating decision. Thus, the rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

This evidence is new because it had not been previously submitted and considered by VA. It is material because it provides additional details about the Veteran’s diagnosis, and it shows that a diagnosis of acute leukemia was not in question. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512 – 13. Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the appellant’s claim. Accordingly, since new and material evidence has been received, the service connection claim for cause of the Veteran’s death is reopened.

Service Connection for Cause of the Veteran’s Death

The appellant asserts that her husband, the Veteran, died from a type of leukemia that was caused by a herbicide agent, Agent Orange, which he was exposed to, during his service in Vietnam. See April 2019 Notice of Disagreement.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute as a principal cause of death from a service-connected disability, it 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). To constitute as a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the Veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had a material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); 38 C.F.R. § 3.312(c)(1). 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). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3).

The appellant asserts that the Veteran served in the Army during the Vietnam era, was boots on the ground in South Vietnam, and was exposed to Agent Orange. She further asserts that the Veteran passed away from acute myelogenous leukemia, diagnosed two weeks prior to his death. and as a result of his exposure to Agent Orange. See June 2018 Statement in Support of Claim.

Generally, a veteran is presumed exposed to herbicide agents, including Agent Orange, if he or she had active military, naval, or air service in the Republic of Vietnam from January 9, 1962 to May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to herbicide agents, including Agent Orange, during active service, service connection is presumed for a specific enumerated list of diseases, including and not limited to, all chronic B-cell leukemia. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e).

Service personnel records (SPR) confirm that the Veteran served in the Republic of Vietnam from May 1966 to May 1967. See e.g. December 2013 Response to Request for Information. Thus, VA presumes that he was exposed to herbicide agents such as Agent Orange. However, there is no evidence, as medical treatment records have not shown, that the Veteran was diagnosed with a type of chronic b-cell leukemia, and/or a disease that is on the enumerated list of diseases that are associated with herbicide agent exposure. Thus, service connection for this claim, on a presumptive basis, is not warranted.

Nonetheless, this is not dispositive of the issue because alternatively, direct service connection, for cause of the Veteran’s death, can still be established under 38 C.F.R. § 3.303(d), if there is evidence that the disability was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

The Certificate of Death establishes that the immediate cause of the Veteran’s death was cardiopulmonary arrest, due to (an underlying cause) septic shock, and also due to (another underlying cause) acute myelogenous leukemia. However, service treatment records (STRs) do not show any evidence of an illness, disease, treatment, and/or diagnoses that may be related to the illnesses that caused and/or were an immediate and/or underlying cause of the Veteran’s death (cardiopulmonary arrest, septic shock, and/or acute myelogenous leukemia). While leukemia is a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309, it must be manifest to a degree of ten percent or more within one year from service discharge. Here, the evidence shows that it was not diagnosed until two weeks prior to the Veteran’s death.

Although a medical opinion to determine whether the cause of the Veteran’s death was related to his active service has not been sought, the Board finds that remanding the matter to obtain a medical opinion is not warranted. In determining whether a medical opinion is warranted in a claim for Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 (or a claim of service connection for the cause of the Veteran's death), VA must determine if such opinion is “necessary to substantiate the claim” or whether, instead, “no reasonable possibility exists that such assistance would aid in substantiating the claim.” DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2009); 38 U.S.C. § 5103A (a).

Here, the medical evidence, to include a certificate of death, shows that the Veteran died more than 40 years after his final service separation. As a matter of fact, he was diagnosed with acute myelogenous leukemia approximately two weeks prior to his death. See February 2009 Pathology Report; see also June 2018 Statement in Support of Claim, Submitted by the Appellant. Thus, there is no lay or medical evidence of continuity of symptoms, and/or a nexus between the Veteran’s cardiopulmonary arrest, septic
, 520 F.3d 1345, 1348 (Fed. Cir. 2009); 38 U.S.C. § 5103A (a).

Here, the medical evidence, to include a certificate of death, shows that the Veteran died more than 40 years after his final service separation. As a matter of fact, he was diagnosed with acute myelogenous leukemia approximately two weeks prior to his death. See February 2009 Pathology Report; see also June 2018 Statement in Support of Claim, Submitted by the Appellant. Thus, there is no lay or medical evidence of continuity of symptoms, and/or a nexus between the Veteran’s cardiopulmonary arrest, septic shock, and/or acute myelogenous leukemia and his service.

It also is pertinent to note that, at the time of the Veteran's death, he was not service connected for any disability. Further, there is no competent evidence, other than the appellant’s statements, which indicates that the cause of the Veteran's death may be associated with service, and specifically, in-service exposure to Agent Orange. Furthermore, while the Board does not doubt the appellant’s sincere belief that her late husband’s acute myelogenous leukemia is due to his exposure to herbicide agents in service, she is not shown to have the experience or training to testify about the cause of the Veteran's death, as it requires medical expertise to render such a determination. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see too Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent, in certain situations, to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, after an assessment and consideration of all probative evidence of record, the Board finds that there is “no reasonable possibility” that obtaining an opinion regarding the cause of the Veteran's death or the asserted etiological relationship between his death and active service “would aid in substantiating the claim.” See DeLaRosa, 515 F.3d at 1322, and Wood, 520 F.3d at 1348.

(Continued on the next page)

Although the Board is grateful for the Veteran’s Honorable service, there is no basis for granting this claim, as the Veteran was not service-connected for any disabilities, and there is no probative evidence demonstrating that the immediate and/or underlying cause of his death is related to his active military service. Thus, as the preponderance of the evidence is against this claim, service connection for cause of the Veteran’s death must be denied.

Matthew Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Vanessa-Nola Pratt, Associate 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.

Analyze in VA Law Explorer