Citation Nr: 1331306 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-31 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and H.K.J. ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from May 1974 to May 1998. He died in March 2006. The appellant is his surviving spouse. This matter is on appeal from a July 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The matter was most Remanded in January 2013 so that a Board hearing could be scheduled. The appellant testified before the undersigned at a Travel Board hearing in May 2013. A transcript is of record. In July 2013, the Board requested a Veterans' Health Administration (VHA) advisory opinion. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(a) (2013). The resulting VHA opinion was received by the Board in September 2013 and has been included in the claims folder for review. Although the VHA opinion has not yet been provided to the appellant and her representative, as the Board is granting in full the benefit sought on appeal, this procedural error is deemed to be non-prejudicial to the appellant. 38 C.F.R. § 20.903 (2013). FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in March 2006 as a result of gram negative bacteremia sepsis due to or as a consequence of relapsed/refractory acute myeloid leukemia (AML). 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. The competent and credible evidence establishes that the Veteran's AML, which led or contributed to his death, is related to exposure to chemicals, such as benzene, during the Veteran's service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. Legal Principles Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2013). A principal cause of death is one which, singularly 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) (2013). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2013). Service connection for the cause of death may also be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is, in order to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). The evidence must show: (1) the existence of a disability at the time of the Veteran's death; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). III. Analysis The appellant does not contend that the AML that resulted in the Veteran's death necessarily had its initial onset in service, or that it manifested to a compensable degree within a year of service discharge. Rather, the appellant argues that the Veteran's work with chemical solvents, including Benzene, caused his AML, which subsequently led to his death in March 2006. The appellant submitted different internet articles showing an association between Benzene and the development of AML. The Veteran's service treatment records are not of record. The Veteran's service personnel records reflect military occupational specialties of special purpose vehicle and equipment maintenance for 23 years and 11 months and general purpose vehicle mechanic. A statement from a fellow service member, who worked in Material Control Vehicle Maintenance and a friend of the Veteran, describes the routine use of petroleum products and solvents in the duties of an Air Force Mechanic. The Veteran's exposure to chemical solvents, include Benzene, is thereby conceded. 38 U.S.C.A. § 1154(a). The exact level of exposure or frequency of exposure remains unknown, however. The Veteran was diagnosed with follicular lymphoma in April 2005 and with AML in August 2005. A private treatment record dated in August 2005 shows that the Veteran's AML was possibly concurrent with the follicular lymphoma. However, it was not thought that there was any direct relationship and the Veteran seemed to have two separate problems. In February 2006, the Veteran was hospitalized and subsequently passed away in March 2006. The cause of death shown on the certificate of death was gram negative bacteremia sepsis due to or as a consequence of relapsed/refractory acute myeloid leukemia. The record includes multiple opinions provided by the VA and the appellant addressing whether the Veteran's death from AML could be linked to his active service. Drs. R.L. and B.A. both stated that there was a clear association between AML and Benzene. Research and testimony supporting the theory that the Veteran's AML was caused by in-service exposure to Benzene was also provided by H.K.J., II, who is a university chemist. VA opinions procured in June 2006 and November 2010 that it would be purely speculative to suggest that the Veteran's AML was caused by his service, to include exposure to chemical solvents such as Benzene. Both physicians suggested alternate causes. While all of the opinions and reports were probative, none were sufficient enough to allow the Board to make a decision on the appeal. The Board referred the claim for a VHA medical expert opinion. In a September 2013 opinion, a hematologist/oncologist, thoroughly reviewed the claims file and addressed the specific questions stated for consideration by the Board. The medical expert essentially concluded that it was at least as likely as not that the Veteran's AML, which led, or contributed to his death was etiologically related to service, including exposure to chemicals such as Benzene. The medical expert explained that "24 years of service in the Air Force is long enough to develop AML from benzene exposure, provided that chemical exposure, such as which chemicals in what amount, or how long the exposure lasted can be fairly estimated from current sources." The medical expert noted that there is lesser risk of developing AML from smoking compared to Benzene, but that Benzene is an established risk factor for the development of AML. The medical expert concluded that "The exposure to benzene is a well established scientific fact of causing AML." In consideration of the evidence of record, the Board finds that the evidence in this case is, at minimum, in equipoise regarding the question of service connection for the cause of the Veteran's death. There are conflicting opinions as to whether the Veteran's AML which led, or contributed, to his death was etiologically related to service, to include exposure to chemicals such as Benzene. However, all medical experts agree that Benzene is a risk factor for the development of leukemia and AML. This, standing alone, is sufficient for the Board to conclude that the Veteran's AML was etiologically related to service, including in-service exposure to Benzene. Thus, the benefit-of-the doubt will be resolved in the appellant's favor, and her claim for service connection for the cause of the Veteran's is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs