Citation Nr: 0006889 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 97-01 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office 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 WITNESSES AT HEARINGS ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The appellant is the widow of the veteran who had active service from July 1950 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from an April 1996 rating action by the RO which denied entitlement to service connection for the cause of the veteran's death. The appellant appeared and gave testimony at a February 1997 hearing before a hearing officer at the RO, and at a November 1997 hearing before the undersigned Board member in Washington, D.C.. Transcripts of these hearings are in the claims folder. In December 1997 the Board remanded the claim for development. The case has returned from the RO, and is before the Board for appellate consideration at this time. FINDINGS OF FACT 1. The veteran died in January 1996 due to acute myelocytic leukemia with a hemorrhagic cerebrovascular accident and respiratory arrest. 2. During the veteran's lifetime and at the time of death, service connection was in effect for bilateral hearing loss, evaluated as 20 percent disabling; essential hypertension, evaluated as 10 percent disabling; and residuals of a knee injury, evaluated as 10 percent disabling. 3. It is reasonably possible that service-connected essential hypertension materially aided and lent assistance to the production of death. CONCLUSION OF LAW The veteran's service-connected essential hypertension contributed substantially and materially to the cause of death. 38 U.S.C.A. §§ 1310, 5107(a) (West 1991 & Supp 1999); 38 C.F.R. § 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's death certificate shows that he died of respiratory arrest in January 1996, at the age of 68, at the Womack Army Medical Center. The underlying cause of death was acute myelocytic leukemia associated with a hemorrhagic cerebrovascular accident and respiratory arrest. An autopsy was performed and a copy of the autopsy report as well as the terminal hospitalization report are of record and are in conformity with the death certificate. During the veteran's lifetime and at the time of his death, service connection was in effect for bilateral hearing loss, evaluated as 20 percent disabling; essential hypertension, evaluated as 10 percent disabling; and residuals of a knee injury, evaluated as 10 percent disabling. In February 1997 the appellant testified before a hearing officer at the RO. At the hearing she stated that the veteran had been diagnosed with leukemia in April 1995. Also at that hearing, the veteran's daughter testified that the veteran did not take his blood pressure medication, though he told her that his blood pressure was elevated. In November 1997 the appellant testified before the undersigned Board member that he husband had told her that he had been exposed to Agent Orange in service in Vietnam. The appellant also asserted that the veteran ingested chemicals by mouth while in Vietnam. She testified that the veteran had been hospitalization multiple times at VA facilities post service, including for his leukemia. She testified that a physician at the Durham VAMC, R. C. Quackenbush, M.D., had told her that her husband's leukemia was related to Agent Orange exposure. She added that there had been a letter to this effect from that doctor, but that the letter could not be obtained. She also testified that her husband lived for seven or eight months following his diagnosis of leukemia. She added that he had hypertension, and this affected his treatment. She testified that he had been treated for hypertension at VA facilities. The claims folder contains a February 1998 VA medical opinion, based on a review of the medical evidence, to the effect that it is likely that the veteran's service-connected hypertension, as well as atherosclerosis, contributed to some degree to the veteran's death. The claims folder also contains an April 1998 medical statement by R. C. Quackenbush, M.D., a private physician who had formerly treated the veteran at a VA facility, to the effect that there was a possible etiological relationship between the veteran's exposure to Agent Orange in Vietnam and his incurrence of a myelodysplasia, and that myelodysplasia was often the cause of the rare erythroleukemia which the veteran developed and which caused his death. These medical statements, taken together, cause the appellant's claim to be well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991) in that her claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). Once it has been determined that the claim is well grounded, the VA has a statutory duty to assist the veteran in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The Board is satisfied that the RO has made all reasonable efforts to obtain all available evidence pertinent to the claim and that proper appellate development, including appropriate notice to the appellant, has been made. The Board is satisfied that all available evidence necessary for an equitable disposition of the appeal has been obtained. The Board therefore finds that the duty to assist has been met. Under the applicable criteria, to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly, or together with some other condition, be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1999). The Board notes that 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, 1131 (West 1991). Agent Orange law provides a rebuttable presumption of service connection when a listed disease is diagnosed (to a degree of disability of 10% or more) at any time after service. 38 U.S.C. § 1116(a)(1)(A), (2)(B) (West 1991 & Supp 1999); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). With respect to the claim for service connection for the cause of the veteran's death as a residual of exposure to Agent Orange, the Board notes that a veteran who, during active service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e) (1999), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. However, diseases or disorders which have been positively associated with herbicide exposure do not include leukemia. 38 C.F.R. § 3.309(e). When the case was last remanded by the Board in December 1997, prior to McCartt v. West, 12 Vet. App. 164 (1999) (holding that without evidence that the veteran had one of the diseases listed in 38 C.F.R. § 3.309(e), the presumption of exposure to Agent Orange did not apply, so that competent evidence showing exposure to Agent Orange must be presented to establish such exposure), the Board had concluded, relying on Combee v. Brown, 82 F.3d 389 (Fed. Cir. 1996), that exposure to Agent Orange in service was presumed based on the veteran's service in Vietnam, and remanded for a medical opinion from R. C. Quackenbush, M.D., as to whether the myelocytic leukemia causative of death was related to Agent Orange exposure. The Board also sought an opinion from a VA specialist in vascular diseases as to whether the veteran's service-connected hypertension or associated arteriosclerosis caused or contributed to the hemorrhagic cerebrovascular accident causative of death. The record returned to the Board following that remand included statements of opinion by R. C. Quackenbush, M.D., and by a VA medical examiner. As noted above, Dr. Quackenbush provided an April 1998 opinion to the effect that there was a possible etiological relationship between the veteran's exposure to Agent Orange in Vietnam and his incurrence of a myelodysplasia, and that myelodysplasia was often the cause of the rare erythroleukemia (a subtype of acute myelogenous leukemia) which the veteran developed and which caused his death. The VA medical examiner reviewed the claims file and noted in his February 1998 report that the veteran suffered from hypertension with records indicating significant hypertension in the 1970's, but with normal blood pressure upon hospitalizations shortly prior to death, without the veteran having taken any medication immediately prior to such recent hospitalization. The examiner noted that the veteran had a history of multiple bleeding episodes during the last several years of his illness, with the veteran developing seizures in his final illness. The examiner noted that the veteran suffered a hemorrhagic central nervous event that caused his death, and that upon pathologic evaluation the cause was determined to be a coagulopathy secondary to acute leukemia, with hemorrhage and infarction of multiple organs. The pathologist found only mild to moderate atherosclerosis without significant damage to the other end organs. The February 1998 VA examiner concluded that the cause of death (the terminal leukemia) was not significantly related to the veteran's hypertension. Nonetheless, that examiner concluded that it was likely that the veteran's hypertension and/or atherosclerosis had "some degree of contribution" to the veteran's death. Without seeking any further clarification, the RO returned the case to the Board. The Board does not see fit to remand the case again in light of McCartt. Rather, in light of the February 1998 VA medical opinion, the Board concludes that it is at least as likely as not that the veteran's service- connected essential hypertension materially contributed to his demise, even though the hypertension was not causally associated with the terminal leukemia. The Board further notes that where a veteran has service connection for essential hypertension, the subsequent development of any form of arteriosclerotic disease is recognized as part and parcel of the service connected disease entity. Accordingly, service connection for the cause of death is warranted. 38 U.S.C.A. §§ 1310, 5107(b); 38 C.F.R. § 3.312. ORDER Service connection for the cause of the veteran's death is granted. BRUCE E. HYMAN Member, Board of Veterans' Appeals