Entitlement To Service Connection For The Cause Of The Veteran's Death.

[allan]

Citation Nr: 9915488

Decision Date: 06/03/99 Archive Date: 06/15/99

DOCKET NO. 97-17 384 ) DATE

)

)

On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO)

in Winston-Salem, North Carolina

THE ISSUE

Entitlement to service connection for the cause of the

veteran's death.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

C. Schlosser, Associate Counsel

INTRODUCTION

The veteran had active military service from October 1976 to

August 1981.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a July 1996 rating action in which the

RO denied, among other things, service connection for the

cause of the veteran's death. By a July 23, 1996, letter,

the RO also informed the appellant that a claim for accrued

benefits, death pension, and dependency and indemnity

compensation under 38 U.S.C.A. § 1318(b) (West 1991) had been

denied. The denial of service connection for the cause of

the veteran's death was the only issue thereafter appealed.

38 C.F.R. §§ 20.200, 20.302© (1998) (an appeal is initiated

by a notice of disagreement and is completed only by filing a

substantive appeal after issuance of a statement of the case

or supplemental statement of the case which addresses the

issues that the appellant desires to appeal).

FINDINGS OF FACT

1. The veteran was exposed to benzene or benzene-like

compounds in service while performing her duties as an

aircraft maintenance specialist.

2. The veteran was diagnosed with acute myeloid leukemia in

1991.

3. It is likely that prolonged exposure to benzene or

benzene-like compounds in service led to the development of

acute myeloid leukemia.

4. Complications from acute myeloid leukemia contributed

significantly to the veteran's death.

CONCLUSION OF LAW

Service connection is warranted for the cause of the

veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West

1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.312 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Factual Background

The death certificate reveals that the veteran died on May

[redacted] 1996. The immediate cause of death was listed as

respiratory arrest. The primary causes of death, in

sequential order, were listed as multi-organ system failure,

graft versus host disease, and umbilical cord blood

transplant for leukemia. An autopsy was performed. At the

time of the veteran's death, she was hospitalized at the Duke

Medical Center in Durham, North Carolina. The hospital

summary and clinical records of the terminal period of

hospitalization reflect a primary diagnosis of acute myeloid

leukemia with multiple secondary diagnoses.

The veteran's service medical records are negative for any

diagnosis of acute myeloid leukemia. The veteran's

occupational specialty in service was aircraft maintenance

specialist.

Post-service treatment records show that the veteran was seen

at Seymour Johnson Air Force Base in June 1991 after

experiencing pounding in her chest along with some mild chest

pain for the previous few weeks. Subsequent evaluation at

the Southeastern Medical Oncology Center resulted in a

diagnosis of pancytopenia, probably secondary to pre-leukemia

or frank leukemia. The veteran underwent chemotherapy and

the leukemia was noted to be in remission in October 1991.

In August 1992, the veteran filed a claim for entitlement to

service connection for acute myelogenous leukemia. She

contended that she served as an F-4 crew chief in service and

was exposed to numerous carcinogens including F-4E and F-4F

radar transmissions, various fuels, greases, oils, cleaning

compounds, ECM transmissions, aircraft cleaning soap, and

asbestos gloves.

On VA examination in September 1992, diagnoses included acute

myelogenous leukemia, history of total body radiation,

chemotherapy, bone marrow transplant, multiple bone marrow

biopsies and aspirations, and history of exposure to radar,

jet fuel, oil and asbestos gloves.

In a May 1993 letter to the veteran, the RO requested

information from the veteran about her alleged exposure to

carcinogens in service. In a June 1993 letter, the veteran

outlined her in-service duties which exposed her to the

carcinogens previously identified in her claim for service

connection. She stated that her occupational history in

service included work on both flightline and phase inspection

maintenance from 1976 to 1981. Her duties included, but were

not limited to the following: washing aircraft with PD-680

which contained petroleum distillates, NAPTHA; treating minor

corrosion using lacquer paints which contained toluene,

methylene chloride, acetone, NAPTHA; launching, recovering

and operating aircraft while radar was in operation; removing

and replacing panels, doors, radomes; removing, replacing,

lubricating and servicing landing gear and components, wheel

and tire assemblies, and brake assemblies, using MIL-C-83360

containing antimonytrioxide and inorganic lead compounds;

servicing and draining liquid oxygen, and removing and

installing liquid oxygen converters with asbestos gloves for

protection; lubricating aircraft flight controls, parts and

assemblies, and aircraft engines with various oils and

lubricants including, but not limited to VV-L-800, molybdenum

grease and leak tek; servicing and draining hydraulic

systems, pneudraulic systems, nitrogen systems, and pneumatic

systems; removing and installing system components; servicing

aircraft with JP-4 fuel which contained petroleum distillates

(NAPTHA), benzene and toluene; removing and installing

external JP-4 fuel tanks and fuel filters; inspecting and

repairing JP-4 fuel leaks; inspecting, removing, and

replacing engines and engine components; and removing and

installing nickel-cadmium aircraft batteries. The veteran

further stated that her post-service occupational history

consisted of office work and educational pursuits without any

known exposure to carcinogens.

Thereafter, the RO undertook significant efforts to ascertain

whether the veteran had been exposed to radiation in service.

The RO requested information about possible radiation

exposure the veteran may have experienced in service from the

United States Air Force Occupational Health Laboratory, the

Defense Nuclear Agency, the Navy Dosimetry Center, the USA

Ionizing Radiation Dosimetry Center, and the Reynolds

Electrical &Engineering Co., Inc. These requests were met

with negative results.

In February 1995, the veteran submitted a January 1995 letter

from her treating oncologist, Lance Loomer, M.D., at the

Southeastern Medical Oncology Center. Dr. Loomer indicated

that, if the veteran was indeed exposed to benzene or

benzene-like compounds, it was definitely possible that her

leukemia arose from such exposure. Dr. Loomer went on to

state that the lag time in developing leukemia after exposure

peaked at approximately eight years and then plateaued at a

3-4% probability. He indicated that it was consequently rare

to develop leukemia immediately, and that it would be much

more common to develop leukemia years later as in the case of

the veteran.

The veteran also submitted abstracts from several articles

which reportedly linked exposure to certain carcinogens,

including benzene compounds, to the development of leukemia.

Following the death of the veteran in May 1996, the appellant

submitted a document from the veteran's service medical

records which showed treatment in service for a chemical burn

of the right upper extremity while using PD-680 during a

cleaning operation in 1977.

II. Analysis

Initially, the Board finds that the appellant's claim for

service connection for the cause of the veteran's death is

well grounded within the meaning of 38 U.S.C.A. § 5107(a).

That is, he has presented a claim which is not inherently

implausible, especially given the veteran's previously

submitted statements regarding in-service chemical exposure,

the opinion by Dr. Loomer, and the abstracts of certain

medical articles. See Murphy v. Derwinski, 1 Vet.App. 78, 81

(1990).

In order to establish service connection for a disability,

there must be objective evidence that establishes that such

disability either began in or was aggravated by service.

38 U.S.C.A. § 1110. A determination of service connection

requires a finding of the existence of a current disability

and a determination of a relationship between that disability

and an injury or disease incurred in service. Watson v.

Brown, 4 Vet.App. 309, 314 (1993). 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 will be considered as the

principal (primary) cause of death when such disability,

singly 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 (1998). For a service-

connected disability to be considered the principal or

primary cause of death, it must singly, or with some other

condition, be the immediate or underlying cause, or be

etiologically related thereto. 38 C.F.R. § 3.312(b) (1998).

In determining whether a service-connected disability

contributed to death, it must be shown that it contributed

substantially or materially; that it combined to cause death;

that it aided or lent assistance to the production of death.

38 C.F.R. § 3.312© (1998).

The veteran's occupational specialty in service was aircraft

maintenance specialist. Prior to her death, the veteran

alleged that she had been exposed to multiple carcinogens,

including benzene compounds, during her duties as an aircraft

maintenance specialist. Based on her occupational specialty

in service, and the expertise regarding fuels, solvents, and

the like implicit in such a specialty, the Board finds that

the veteran's reference to exposure to certain chemicals,

including benzene, to be both credible and competent evidence

of such exposure. There is evidence of record which confirms

that the veteran was diagnosed with acute myeloid leukemia in

1991, ten years after her discharge from service. As noted

above, there is also a private medical opinion from the

veteran's treating oncologist, as well as evidence contained

in two referenced treatises which strongly suggests a

relationship between exposure to benzene compounds and

subsequent development of acute myeloid leukemia. This

increased risk is supported by information contained in two

medical treatises. Cecil Textbook of Medicine, (James B.

Wyngaarden, M.D., Lloyd H. Smith, Jr., M.D., and J. Claude

Bennett, M.D., eds., 19th ed. 1992), provides, in part, that

heavy occupational exposure to benzene frequently results in

marrow hypoplasia, which sometimes evolves into acute

leukemia. Similarly, Harrison's Principles of Internal

Medicine, (Anthony S. Fauci, M.D., Joseph B. Martin, M.D.,

Eugene Braunwald, M.D., Dennis L. Kasper, M.D., Kurt J.

Isselbacher, M.D., Stephen L. Hause, M.D., Jean D. Wilson,

M.D., and Dan L. Longo, M.D., eds., 14th ed. 1998), notes

that benzene used as a solvent has been related to an

increased incidence of acute myeloid leukemia.

The Board finds that the evidence, both positive and

negative, is at least in relevant equipoise. When after

careful consideration of all procurable and assembled data, a

reasonable doubt arises regarding service origin, the degree

of disability or any other point, such doubt will be resolved

in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R.

§ 3.102. Under such circumstances, the Board concludes that

the evidence supports a grant of service connection for the

cause of the veteran's death. 38 C.F.R. §§ 3.102, 3.303

(1998).

It is clear from review of the veteran's death certificate

that complications from the veteran's acute myeloid leukemia

were a significant contributing cause of her death. Pursuant

to the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and 38

C.F.R. § 3.312© (1998), service connection for the cause of

the veteran's death is granted.

ORDER

Service connection for the cause of the veteran's death is

granted.

MARK F. HALSEY

Member, Board of Veterans' Appeals

Edited November 16, 2009 by allan

[gdsnide]

Allan.

It's interesting that the Veteran is referred to as a She & a He on this page.

GARY

[allan]

I couldn't expect anything more from the VA Gary.

If they help a vet, it's purely by accident.

[Berta]

I wonder who the appellant was.

They usually say widow or widower or child of the deceased.

Maybe this was claim for DIC on behalf of her children.?

There was excellent evidence in this case.

[kw34]

I was stationed at Seymour my evidence was very similar to this I had two opinions from my treating physicians. I also submitted info on every chemical mentioned in this case and quite a few others in the Naphta stream. I was able to win SC after an initial denial it took 1 year and 6 months.