This is an interesting claim. And it has already been up through the Federal Court and back. What is interesting is that even after all that - it is still being remanded to give the VA one more chance to write a medical opinion that is sufficient to deny the claim, and give adequate reasons and bases for doing so.
Some things I found interesting is that the Court did not consider the VA examiner stating that studies were not conclusive to be probative evidence. So it is part of that lack of evidence is not negative evidence argument. I don't know how many claims I have read where the BVA relied on the opinion of the examiner saying that studies didn't show that x caused y, or that studies were inconclusive.
I do like the part about using treatises evidence as enough evidence to require an exam / opinion.
They also said the VA opinion that relied on a 2004 study couldn't be used to defeat the accrued benefits claim, since the veteran died prior to 2004. But they also said the dic claim and the accrued benefits claim were inextricably intertwined and that one could not be considered without considering the other.
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for chronic myelogenous leukemia, to include as due to exposure to Agent Orange, for purposes of accrued benefits.
2. Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Daniel G. Krasnegor, Attorney at Law
WITNESSES AT HEARING ON APPEAL
Appellant and the Veteran
ATTORNEY FOR THE BOARD
E. Joyner, Counsel
INTRODUCTION
The Veteran served on active duty from November 1965 to November 1971, including two tours in Vietnam. He died in April 1999. The appellant is the Veteran's surviving spouse.
This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision of the Regional Office (RO) in St. Louis, Missouri, that denied the appellant's claims for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits, and for service connection for the cause of the Veteran's death.
These matters were previously before the Board in March 2003, at which time they were remanded to ensure due process.
In a July 2003 decision, the Board denied service connection for chronic myelogenous leukemia, to include as due to exposure to Agent Orange, for purposes of accrued benefits, and denied service connection for the cause of the Veteran's death.
The appellant appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In a July 2007 decision, the Court vacated and remanded that part of the Board's July 2003 decision that denied service connection for chronic myelogenous leukemia, to include chronic myelogenous leukemia based on Agent Orange exposure, for the purpose of Dependency and Indemnity Compensation (DIC) benefits. The Court found that the Board's July 2003 decision failed to provide an adequate statement of reasons and bases discounting a May 1995 favorable medical opinion.
The Court affirmed the denial of service connection for chronic myelogenous leukemia, for purposes of accrued benefits. The Court noted that at oral argument, the appellant's attorney asserted that the appellant had not abandoned the issue, but conceded that the distinction between the accrued benefits issue and the DIC claim were not adequately covered in the briefs, and that her arguments to each were not clearly delineated. The Court asserted that the appellant had failed to raise any specific argument as to how VA's notice to her was defective, and therefore the Court stated it would not address the matter.
The appellant appealed the Court's July 2007 decision to United States Court of Appeals for the Federal Circuit (Federal Circuit). In a May 2009 decision, the Federal Circuit reversed and remanded the Court's July 2007 decision. The Federal Circuit found that there was no legal basis to distinguish the two claims of service connection. The Federal Circuit held that the failure of the Board's July 2003 decision to provide reasons and bases for discounting the 1995 medical opinion affected the accrued benefits claim in exactly the same way it affected the DIC benefits claim. The Federal Circuit reversed and remanded to the Court with instructions to remand to the Board on this issue, so that the DIC and accrued benefits claims could be considered together.
When the case was most recently before the Board in July 2010, the Board denied the appellant's claims for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits, and for service connection for the cause of the Veteran's death. The appellant appealed the July 2010 denials of her claims to the Court and in an April 2012 Memorandum Decision, the Court vacated the July 2010 decision and remanded the matters to the Board for further development and readjudication consistent with the Memorandum Decision.
The Board also notes that in a February 2012 rating decision, the appellant's claims were readjudicated pursuant to Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). The February 2012 rating decision denied the appellant's claims.
Specifically, in this regard, in May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on the regulations that became effective on September 25, 1985. Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). The district court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid VA regulations. Nehmer v. United States Veterans' Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II).
In May 1991, the United States government and the plaintiffs in the Nehmer litigation entered into a stipulation according to which VA would readjudicate claims the denials of which were voided by Nehmer I. Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991) (Nehmer Stipulation). The effective date of any resulting award of benefits would be based on the filing date of the original claim, for claims originally filed before May 3, 1989 (Stipulation 1), or on the later of the filing date of the claim or the date of disability or death of the Veteran, for claims filed after May 3, 1989 (Stipulation 2). See Williams v. Principi, 310 F.3d 1374, 1375-76 (Fed. Cir. 2002).
The Nehmer stipulations were later incorporated into a final regulation that became effective on September 24, 2003. 68 Fed. Reg. 50,966 (Aug. 25, 2003) (codified at 38 C.F.R. § 3.816).
Pursuant to 38 C.F.R. § 3.816, a Nehmer class member is defined to include a surviving spouse, child, or parent of a deceased Vietnam Veteran who died from a covered herbicide disease. Chronic lymphocytic leukemia (CLL) was added to the list of covered herbicide diseases in October 2003, and an April 2006 decision of the United States Court for the Northern District of California held that the provisions of the Nehmer class action suit also applied to disability or death claims based on CLL, thus entitling those who met the eligibility requirements to claim retroactive benefits. See 68 Fed. Reg. 59540-59542 (October 16, 2003); see also Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH).
The appellant was mailed notice of the February 2012 rating decision in an April 2012 letter. She was informed of her right to appeal the decision within one year of date of the April 2012 letter.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Pursuant to the April 2012 Memorandum Decision, the Court found that the Board did not provide adequate reasons and bases with respect to its denial of service connection for the cause of the Veteran's death because it did not adequately explain why it favored Dr. McCall's negative nexus opinion and addendum over Dr. Luker's positive nexus opinion, and failed to properly consider treatise evidence favorable to the appellant's claim.Specifically, the Court found that the Board did not explain what findings, if any, Dr. Luker overlooked or how his failure to refer to those findings demonstrated that he was not reasonably informed of the Veteran's relevant medical history. Moreover, the Board was found to have inappropriately accorded more probative value to Dr. McCall's opinion and addendum because they were based upon the National Academy of Sciences Study. The Court noted that the Board had previously stated that in 2004 the National Academy of Sciences found that there was inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and leukemia (other than chronic lymphocytic leukemia), meaning that the available studies were of insufficient quality, consistency, or statistical power to permit a conclusion one way or another regarding an association between leukemia (other than chronic lymphocytic leukemia) and herbicide exposure. In doing so, the Board recognized that the National Academy of Sciences' findings were at best inconclusive regarding such a relationship between herbicide exposure and chronic myelogenous leukemia, not that they demonstrated that there was no association between the two. As such, the Court found that the findings of the National Academy of Sciences would not tend to contribute probative value to Dr. McCall's opinion and addendum nor would those findings be able to detract from Dr. Luker's opinion because such findings do not tend to prove that the Veteran's chronic myelogenous leukemia was more or less likely caused by Agent Orange exposure. In sum, the Court found that the Board's reasons and bases were inadequate to the extent that the Board relied on the findings of the National Academy of Sciences in weighing the opposing medical opinions as to the issue of direct service connection.
The Court also concluded that the Board did not adequately consider the treatise evidence of record. The Court agreed with the Board insofar as the Board found that such treatise evidence does not demonstrate a causal relationship between the Veteran's particular service and his claimed condition, but the Court also found that the Board failed to consider the treatise evidence for the purpose of evaluating the probity of other evidence of record. Notably, the Court found incongruity in the Board's reliance on the generalized findings contained in the inconclusive National Academy of Sciences study while simultaneously summarily rejecting favorable treatise evidence for being "general in nature."
The Court further found that the Board erred in determining that VA was not required to obtain a medical opinion as to whether there was a relationship between the Veteran's exposure to benzene in Agent Orange and his chronic myelogenous leukemia. The Court found that the treatise evidence of record was sufficient to show that the Veteran's chronic myelogenous leukemia "may be associated with" his exposure to AO in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case). The Court also found that the Board's determination that the final element (insufficient evidence to decide the case) was not met was clearly erroneous. The Board determined that there was sufficient evidence to decide the case, as all necessary development had been accomplished, including numerous medical opinions in 2000 addressing the etiology of the Veteran's chronic myelogenous leukemia. However, the Court found this finding to be clearly erroneous because none of those medical opinions considered the possibility that exposure to benzene could be associated with the development of chronic myelogenous leukemia, as the appellant did not present that argument and the accompanying treatise evidence to VA until April 2010, many years after the medical opinions cited by the Board were rendered. Consequently, the Court found that there was insufficient competent medical evidence on file for the Board to make a decision on the appellant's claim for service connection for the cause of the Veteran's death.
As such, the Court directed the Board to obtain a medical opinion on remand. Moreover, in written argument received by the Board in January 2013, the Veteran's representative specifically argued that the appellant's claim for service connection for the cause of the Veteran's death should be remanded in order to obtain a VA medical opinion. Therefore, the Board finds that remand is required in order to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Finally, the Court found that the Board also provided an inadequate statement of reasons or bases for its determination that the appellant was not entitled to accrued benefits. Specifically, the Court found that the Board "applied the same flawed analysis in evaluating the probity of Dr. Luker's opinion" as it did with respect to the cause of death claim. The Court also concluded that the Board erred to the extent that it relied on findings of the National Academy of Sciences from 2004, four years after the Veteran's death, noting that 38 U.S.C.A. § 5121(a) requires that claims for accrued benefits must be decided based upon evidence in the file at the date of death. The Court indicated that the appellant's claim for accrued benefits is inextricably intertwined with her claim for dependency and indemnity compensation benefits.
In this regard, the Board notes that adjudication of accrued benefits claims are to be based on evidence in VA's possession at the time of death even if the evidence was not physically located in the claims folder at the time of death. See 38 U.S.C.A. § 5121(a) (West Supp. 2011); 38 C.F.R. § 3.1000 (d)(4) (2012). However, additional evidence may be developed in the course of a claim for DIC benefits. As such, and as noted above, the appellant's claim for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits is inextricably intertwined with the claim of entitlement to service connection for the cause of the Veteran's death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for service connection for chronic myelogenous leukemia for purposes of accrued benefits must be remanded as well.
The Board additionally observes that there has not been compliance with VA's duties to notify under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002), or the implementing regulations codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), or the expansion of such duties in Hupp v. Nicholson, 21 Vet. App. 342 (2007). See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In this case, the appellant was provided with a VCAA notice letter in April 2003. Although not mentioned in the April 2012 Memorandum decision, the Board notes that the April 2003 letter did not specifically notify the Veteran of the evidence required to establish entitlement to dependency and indemnity compensation benefits based on the cause of the Veteran's death. The letter also failed to advise the appellant as to whether service connection had been established for any disability, in compliance with Hupp, and did not discuss the law pertaining to the assignment of disability ratings and effective dates in compliance with Dingess/Hartman. Therefore, the Board finds that corrective notice may be provided while the case is being remanded.
Accordingly, the case is REMANDED for the following action:
1. Send the appellant a corrective VCAA notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises her of the information and evidence required to support her claim for entitlement to service connection for the cause of the Veteran's death, whether service connection has been established for any disability during the Veteran's lifetime, or for the purpose of accrued benefits, consistent with Hupp, as well as how disability ratings and effective dates are assigned as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
2. Arrange for an appropriate VA examiner to review the Veteran's claims folder in order to provide a medical opinion. A copy of this entire remand must also be provided for the examiner to review. The examiner is advised that the Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. He was diagnosed with leukemia at a VA facility in January 1993.
The Veteran died in April 1999. His certificate of death lists the cause of death as intracranial hemorrhage which was noted to be due to or as a consequence of chronic myelogenous leukemia. The Veteran had no service-connected disability at the time of his death.
The appellant has maintained that the Veteran's exposure to herbicides, while serving in Vietnam, was the cause of the Veteran's leukemia. The Board notes that chronic myelogenous leukemia is not among the forms of leukemia that are for consideration for presumptive service connection. Thus, the appellant must show a direct connection between the Veteran's military service and his chronic myelogenous leukemia.
The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's leukemia was related to the Veteran's military service, to include exposure to herbicides, including dioxin and benzene.
The examiner must address the numerous medical articles and treatises that show Agent Orange contains dioxin, dioxin contains benzene substructures called benzene rings, there is sufficient evidence of an association between benzene and adult leukemia, and evidence that supports a possible association of occupational exposure to benzene and the risk of chronic myelogenous leukemia.
The examiner must also address the May 1995 letter from VA physician Dr. Luker, which indicates that there is a relationship between the exposure to Agent Orange and the diagnosis of chronic myelogenous leukemia, and which reports that the Veteran displayed textbook symptoms of Agent orange exposure including dermatitis.
The examiner should provide a complete rationale for the opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, then he or she should provide a rationale for why an answer could not be provided.
3. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. Failure to ensure the adequacy of the examination report may result in another remand. See Stegall v. West, 11 Vet. App. 268 (1998).
4. Once the above actions have been completed, the RO must re-adjudicate the issues on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).
Question
free_spirit_etc
This is an interesting claim. And it has already been up through the Federal Court and back. What is interesting is that even after all that - it is still being remanded to give the VA one more chance to write a medical opinion that is sufficient to deny the claim, and give adequate reasons and bases for doing so.
Some things I found interesting is that the Court did not consider the VA examiner stating that studies were not conclusive to be probative evidence. So it is part of that lack of evidence is not negative evidence argument. I don't know how many claims I have read where the BVA relied on the opinion of the examiner saying that studies didn't show that x caused y, or that studies were inconclusive.
I do like the part about using treatises evidence as enough evidence to require an exam / opinion.
They also said the VA opinion that relied on a 2004 study couldn't be used to defeat the accrued benefits claim, since the veteran died prior to 2004. But they also said the dic claim and the accrued benefits claim were inextricably intertwined and that one could not be considered without considering the other.
http://www.va.gov/vetapp13/Files1/1308315.txt
Citation Nr: 1308315
Decision Date: 03/12/13 Archive Date: 03/20/13
DOCKET NO. 99-23 972A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for chronic myelogenous leukemia, to include as due to exposure to Agent Orange, for purposes of accrued benefits.
2. Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Daniel G. Krasnegor, Attorney at Law
WITNESSES AT HEARING ON APPEAL
Appellant and the Veteran
ATTORNEY FOR THE BOARD
E. Joyner, Counsel
INTRODUCTION
The Veteran served on active duty from November 1965 to November 1971, including two tours in Vietnam. He died in April 1999. The appellant is the Veteran's surviving spouse.
This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision of the Regional Office (RO) in St. Louis, Missouri, that denied the appellant's claims for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits, and for service connection for the cause of the Veteran's death.
These matters were previously before the Board in March 2003, at which time they were remanded to ensure due process.
In a July 2003 decision, the Board denied service connection for chronic myelogenous leukemia, to include as due to exposure to Agent Orange, for purposes of accrued benefits, and denied service connection for the cause of the Veteran's death.
The appellant appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In a July 2007 decision, the Court vacated and remanded that part of the Board's July 2003 decision that denied service connection for chronic myelogenous leukemia, to include chronic myelogenous leukemia based on Agent Orange exposure, for the purpose of Dependency and Indemnity Compensation (DIC) benefits. The Court found that the Board's July 2003 decision failed to provide an adequate statement of reasons and bases discounting a May 1995 favorable medical opinion.
The Court affirmed the denial of service connection for chronic myelogenous leukemia, for purposes of accrued benefits. The Court noted that at oral argument, the appellant's attorney asserted that the appellant had not abandoned the issue, but conceded that the distinction between the accrued benefits issue and the DIC claim were not adequately covered in the briefs, and that her arguments to each were not clearly delineated. The Court asserted that the appellant had failed to raise any specific argument as to how VA's notice to her was defective, and therefore the Court stated it would not address the matter.
The appellant appealed the Court's July 2007 decision to United States Court of Appeals for the Federal Circuit (Federal Circuit). In a May 2009 decision, the Federal Circuit reversed and remanded the Court's July 2007 decision. The Federal Circuit found that there was no legal basis to distinguish the two claims of service connection. The Federal Circuit held that the failure of the Board's July 2003 decision to provide reasons and bases for discounting the 1995 medical opinion affected the accrued benefits claim in exactly the same way it affected the DIC benefits claim. The Federal Circuit reversed and remanded to the Court with instructions to remand to the Board on this issue, so that the DIC and accrued benefits claims could be considered together.
When the case was most recently before the Board in July 2010, the Board denied the appellant's claims for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits, and for service connection for the cause of the Veteran's death. The appellant appealed the July 2010 denials of her claims to the Court and in an April 2012 Memorandum Decision, the Court vacated the July 2010 decision and remanded the matters to the Board for further development and readjudication consistent with the Memorandum Decision.
The Board also notes that in a February 2012 rating decision, the appellant's claims were readjudicated pursuant to Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). The February 2012 rating decision denied the appellant's claims.
Specifically, in this regard, in May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on the regulations that became effective on September 25, 1985. Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). The district court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid VA regulations. Nehmer v. United States Veterans' Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II).
In May 1991, the United States government and the plaintiffs in the Nehmer litigation entered into a stipulation according to which VA would readjudicate claims the denials of which were voided by Nehmer I. Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991) (Nehmer Stipulation). The effective date of any resulting award of benefits would be based on the filing date of the original claim, for claims originally filed before May 3, 1989 (Stipulation 1), or on the later of the filing date of the claim or the date of disability or death of the Veteran, for claims filed after May 3, 1989 (Stipulation 2). See Williams v. Principi, 310 F.3d 1374, 1375-76 (Fed. Cir. 2002).
The Nehmer stipulations were later incorporated into a final regulation that became effective on September 24, 2003. 68 Fed. Reg. 50,966 (Aug. 25, 2003) (codified at 38 C.F.R. § 3.816).
Pursuant to 38 C.F.R. § 3.816, a Nehmer class member is defined to include a surviving spouse, child, or parent of a deceased Vietnam Veteran who died from a covered herbicide disease. Chronic lymphocytic leukemia (CLL) was added to the list of covered herbicide diseases in October 2003, and an April 2006 decision of the United States Court for the Northern District of California held that the provisions of the Nehmer class action suit also applied to disability or death claims based on CLL, thus entitling those who met the eligibility requirements to claim retroactive benefits. See 68 Fed. Reg. 59540-59542 (October 16, 2003); see also Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH).
The appellant was mailed notice of the February 2012 rating decision in an April 2012 letter. She was informed of her right to appeal the decision within one year of date of the April 2012 letter.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Pursuant to the April 2012 Memorandum Decision, the Court found that the Board did not provide adequate reasons and bases with respect to its denial of service connection for the cause of the Veteran's death because it did not adequately explain why it favored Dr. McCall's negative nexus opinion and addendum over Dr. Luker's positive nexus opinion, and failed to properly consider treatise evidence favorable to the appellant's claim. Specifically, the Court found that the Board did not explain what findings, if any, Dr. Luker overlooked or how his failure to refer to those findings demonstrated that he was not reasonably informed of the Veteran's relevant medical history. Moreover, the Board was found to have inappropriately accorded more probative value to Dr. McCall's opinion and addendum because they were based upon the National Academy of Sciences Study. The Court noted that the Board had previously stated that in 2004 the National Academy of Sciences found that there was inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and leukemia (other than chronic lymphocytic leukemia), meaning that the available studies were of insufficient quality, consistency, or statistical power to permit a conclusion one way or another regarding an association between leukemia (other than chronic lymphocytic leukemia) and herbicide exposure. In doing so, the Board recognized that the National Academy of Sciences' findings were at best inconclusive regarding such a relationship between herbicide exposure and chronic myelogenous leukemia, not that they demonstrated that there was no association between the two. As such, the Court found that the findings of the National Academy of Sciences would not tend to contribute probative value to Dr. McCall's opinion and addendum nor would those findings be able to detract from Dr. Luker's opinion because such findings do not tend to prove that the Veteran's chronic myelogenous leukemia was more or less likely caused by Agent Orange exposure. In sum, the Court found that the Board's reasons and bases were inadequate to the extent that the Board relied on the findings of the National Academy of Sciences in weighing the opposing medical opinions as to the issue of direct service connection.
The Court also concluded that the Board did not adequately consider the treatise evidence of record. The Court agreed with the Board insofar as the Board found that such treatise evidence does not demonstrate a causal relationship between the Veteran's particular service and his claimed condition, but the Court also found that the Board failed to consider the treatise evidence for the purpose of evaluating the probity of other evidence of record. Notably, the Court found incongruity in the Board's reliance on the generalized findings contained in the inconclusive National Academy of Sciences study while simultaneously summarily rejecting favorable treatise evidence for being "general in nature."
The Court further found that the Board erred in determining that VA was not required to obtain a medical opinion as to whether there was a relationship between the Veteran's exposure to benzene in Agent Orange and his chronic myelogenous leukemia. The Court found that the treatise evidence of record was sufficient to show that the Veteran's chronic myelogenous leukemia "may be associated with" his exposure to AO in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case). The Court also found that the Board's determination that the final element (insufficient evidence to decide the case) was not met was clearly erroneous. The Board determined that there was sufficient evidence to decide the case, as all necessary development had been accomplished, including numerous medical opinions in 2000 addressing the etiology of the Veteran's chronic myelogenous leukemia. However, the Court found this finding to be clearly erroneous because none of those medical opinions considered the possibility that exposure to benzene could be associated with the development of chronic myelogenous leukemia, as the appellant did not present that argument and the accompanying treatise evidence to VA until April 2010, many years after the medical opinions cited by the Board were rendered. Consequently, the Court found that there was insufficient competent medical evidence on file for the Board to make a decision on the appellant's claim for service connection for the cause of the Veteran's death.
As such, the Court directed the Board to obtain a medical opinion on remand. Moreover, in written argument received by the Board in January 2013, the Veteran's representative specifically argued that the appellant's claim for service connection for the cause of the Veteran's death should be remanded in order to obtain a VA medical opinion. Therefore, the Board finds that remand is required in order to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Finally, the Court found that the Board also provided an inadequate statement of reasons or bases for its determination that the appellant was not entitled to accrued benefits. Specifically, the Court found that the Board "applied the same flawed analysis in evaluating the probity of Dr. Luker's opinion" as it did with respect to the cause of death claim. The Court also concluded that the Board erred to the extent that it relied on findings of the National Academy of Sciences from 2004, four years after the Veteran's death, noting that 38 U.S.C.A. § 5121(a) requires that claims for accrued benefits must be decided based upon evidence in the file at the date of death. The Court indicated that the appellant's claim for accrued benefits is inextricably intertwined with her claim for dependency and indemnity compensation benefits.
In this regard, the Board notes that adjudication of accrued benefits claims are to be based on evidence in VA's possession at the time of death even if the evidence was not physically located in the claims folder at the time of death. See 38 U.S.C.A. § 5121(a) (West Supp. 2011); 38 C.F.R. § 3.1000 (d)(4) (2012). However, additional evidence may be developed in the course of a claim for DIC benefits. As such, and as noted above, the appellant's claim for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits is inextricably intertwined with the claim of entitlement to service connection for the cause of the Veteran's death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for service connection for chronic myelogenous leukemia for purposes of accrued benefits must be remanded as well.
The Board additionally observes that there has not been compliance with VA's duties to notify under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002), or the implementing regulations codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), or the expansion of such duties in Hupp v. Nicholson, 21 Vet. App. 342 (2007). See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In this case, the appellant was provided with a VCAA notice letter in April 2003. Although not mentioned in the April 2012 Memorandum decision, the Board notes that the April 2003 letter did not specifically notify the Veteran of the evidence required to establish entitlement to dependency and indemnity compensation benefits based on the cause of the Veteran's death. The letter also failed to advise the appellant as to whether service connection had been established for any disability, in compliance with Hupp, and did not discuss the law pertaining to the assignment of disability ratings and effective dates in compliance with Dingess/Hartman. Therefore, the Board finds that corrective notice may be provided while the case is being remanded.
Accordingly, the case is REMANDED for the following action:
1. Send the appellant a corrective VCAA notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises her of the information and evidence required to support her claim for entitlement to service connection for the cause of the Veteran's death, whether service connection has been established for any disability during the Veteran's lifetime, or for the purpose of accrued benefits, consistent with Hupp, as well as how disability ratings and effective dates are assigned as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
2. Arrange for an appropriate VA examiner to review the Veteran's claims folder in order to provide a medical opinion. A copy of this entire remand must also be provided for the examiner to review. The examiner is advised that the Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. He was diagnosed with leukemia at a VA facility in January 1993.
The Veteran died in April 1999. His certificate of death lists the cause of death as intracranial hemorrhage which was noted to be due to or as a consequence of chronic myelogenous leukemia. The Veteran had no service-connected disability at the time of his death.
The appellant has maintained that the Veteran's exposure to herbicides, while serving in Vietnam, was the cause of the Veteran's leukemia. The Board notes that chronic myelogenous leukemia is not among the forms of leukemia that are for consideration for presumptive service connection. Thus, the appellant must show a direct connection between the Veteran's military service and his chronic myelogenous leukemia.
The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's leukemia was related to the Veteran's military service, to include exposure to herbicides, including dioxin and benzene.
The examiner must address the numerous medical articles and treatises that show Agent Orange contains dioxin, dioxin contains benzene substructures called benzene rings, there is sufficient evidence of an association between benzene and adult leukemia, and evidence that supports a possible association of occupational exposure to benzene and the risk of chronic myelogenous leukemia.
The examiner must also address the May 1995 letter from VA physician Dr. Luker, which indicates that there is a relationship between the exposure to Agent Orange and the diagnosis of chronic myelogenous leukemia, and which reports that the Veteran displayed textbook symptoms of Agent orange exposure including dermatitis.
The examiner should provide a complete rationale for the opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, then he or she should provide a rationale for why an answer could not be provided.
3. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. Failure to ensure the adequacy of the examination report may result in another remand. See Stegall v. West, 11 Vet. App. 268 (1998).
4. Once the above actions have been completed, the RO must re-adjudicate the issues on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).
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