BVA9500444 DOCKET NO. 90-52 358 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Navy Mutual Aid Association ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service in the U.S. Marine Corps from May to June 1952, and from May 1954 to February 1981. He served two tours of duty in the Republic of Vietnam. He died in December 1987, and the appellant is his surviving spouse. This appeal arises from a July 1988 rating decision from the St. Petersburg, Florida, Regional Office (RO) which denied entitlement to service connection for the cause of the veteran's death, noting that the veteran's death from leukemia was not proximately related to any alleged exposure to chemicals, including Agent Orange, during service. However in Nehmer v. United States Veterans Administration, 712 F.Supp. 1404 (N.D. Cal., May 2, 1989), a United States Federal District Court voided all benefit denial 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the Department of Veterans Affairs (VA) for revision of the regulation in accordance with the ruling of the Court. In August 1992, the Board of Veterans' Appeals (Board) remanded this case for additional evidentiary development and readjudication, pending establishment of new regulations and procedures by the Secretary of the VA for the processing of Agent Orange claims. In February 1994, these new regulations were promulgated pursuant to 59 Fed. Reg. 5107 (1994) (to be redesignated at 38 C.F.R. §§ 3.307(a), 3.309(e) (1994) (hereinafter cited in this decision as 38 C.F.R. §§ 3.307(a), 3.309(e)). In March 1994, the RO issued a denial based upon these new regulations, and the claims folder was returned and docketed at the Board in October 1994. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the veteran's death from acute myelogenous leukemia is attributable to his exposure to Agent Orange, jet fuel, and other chemical toxins during his many years of service as a pilot in the Marine Corps. Attention is particularly drawn to a statement by the veteran's treating physician, who opined that leukemia and many other cancers have been attributed to Agent Orange exposure, and such exposure is probably a related to the veteran's death in this case, in light of the total absence of any other risk factors. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a grant of service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran died in December 1987, at the age of 57, from acute myelogenous leukemia, attributed by his treating physician to aplastic anemia and pancytopenia, and attributed by a VA hematologist to agnogenic myeloid metaplasia with myelofibrosis. 3. At the time of his death, the veteran was not service connected for any disabilities. Service medical records do not indicate the presence of acute myelogenous leukemia, pancytopenia, agnogenic myeloid metaplasia, or myelofibrosis during service, and the record demonstrates that the veteran's terminal illnesses were not initially diagnosed until six years after service separation. 4. The veteran had active service in Vietnam during the Vietnam era. At the time of his death, he did not have a disability recognized by the VA as causally related to exposure to herbicide agents used in Vietnam. 5. A causal connection between the veteran's acute leukemia and exposure to herbicide agents, jet fuel, or other chemicals during Vietnam or other service has not been demonstrated. CONCLUSIONS OF LAW 1. Acute myelogenous leukemia was not incurred as a result of exposure to herbicide agents in Vietnam during the Vietnam era, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(e) (1994). 2. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the appellant is not required. 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 death. For a service-connected disability to be the cause of death, it must singly or 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 causally 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 (1994). According to the death certificate, the veteran died in December 1987 as a direct consequence of aplastic anemia and pancytopenia, with fever and a possible infection listed as other significant conditions present at death. The terminal hospitalization report, issued by Dr. R. Goslin, the veteran's treating physician, made final diagnoses of acute myelogenous leukemia, massive splenomegaly secondary to the evolution of leukemia, aplastic anemia, fever and leukopenia presumably secondary to infection, and adult respiratory distress syndrome. In December 1993, Dr. P. Tantranond, a VA specialist in hematology and oncology issued his findings upon review of the claims folder. It was his opinion that the veteran's terminal illness process began with the onset of agnogenic myeloid metaplasia with myelofibrosis, rather than aplastic anemia. He based this finding on the results of several bone marrow biopsies, as well as a biopsy of the veteran's spleen, which was removed shortly before his death. Dr. Tantranond did conclude, however, that this condition then transformed into acute granulocytic leukemia, which ultimately resulted in the veteran's death. Thus both the veteran's treating physician and the VA specialist have concluded that the veteran's demise was caused by complications arising from the onset of acute leukemia. At the time of his death, the veteran was not service-connected for any disabilities resulting from service. Moreover, the service medical records do not contain any complaints or abnormal findings indicative of the development of acute leukemia, aplastic anemia, or myelofibrosis. Moreover, it has not been contended that leukemia was incurred directly in service, or within the one year presumptive period following service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The appellant, nevertheless, contends that a grant of service connection is warranted, inasmuch as the veteran's terminal illness is causally related to his exposure to various chemical agents, including Agent Orange, during active service, including his tours of duty in Vietnam. The veteran's active duty included two tours of duty in Vietnam. The new regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1994). These regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The specified diseases are chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, soft-tissue sarcoma, multiple myeloma, and respiratory cancers. 38 C.F.R. § 3.309(e) (1994). Furthermore, the Secretary of the VA formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions, to specifically include leukemia, or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed.Reg. 341 (1994). Inasmuch as the VA regulations have specifically found an absence of positive association between the development of leukemia and exposure to herbicide agents, and no specific determination has been made by the Secretary linking either aseptic anemia or myelofibrosis with herbicide exposure, a presumption of service connection is not warranted. 38 C.F.R. §§ 3.307(a), 3.309(e) (1994). The United States Court of Veterans Appeals for the Federal Circuit recently determined, however, that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, No. 93-7107 (Fed. Cir. Sept. 1, 1994). Although that case specifically dealt with the list of radiogenic diseases contained in 38 C.F.R. § 3.11b (1994), we are of the opinion that the Court's holding in Combee must also be applied to cases involving herbicide exposure. Thus despite the fact that acute leukemia, aplastic anemia, and myelofibrosis are not included on the list of diseases which have been positively linked with herbicide exposure, service connection may still be established by the more onerous route of showing actual causation, where all the evidence establishes that the veteran's cause of death was incurred in service. See 38 C.F.R. § 3.303(d) (1994). The hospitalization and treatment records from the Baptist Hospital in Pensacola, Florida, dated from March 1987, when his initial anemia and pancytopenia were first diagnosed, until the veteran's death in December 1987, discuss in detail the steps taken in order to save, or at least prolong, the veteran's life, including numerous transfusions of packed red blood cells. These clinical records do not, however, note the etiology of the veteran's condition. Nevertheless, a January 1988 letter from Dr. Goslin stated in pertinent part: [The veteran] presented initially in March of 1987 with severe anemia . . . . He had a bone marrow aspirate and biopsy done consistent with aplastic anemia and over the next several months developed worsening pancytopenia and anemia. The patient subsequently required chronic blood transfusions to maintain the red cell count at an adequate level and developed chronic thrombocytopenia . . . . The patient subsequently developed increasing splenomegaly, complicated by worsening pancytopenia and fever and underwent a splenectomy to control pain and to hopefully improve the pancytopenia which was being exacerbated by hypersplenism. Examination of the spleen revealed that the patient had developed acute leukemia as a terminal phase of his illness and [the veteran] subsequently expired secondary to complications of pancytopenia and leukemia. It was noted in [his] record that during the Viet Nam War he was exposed to toxic chemicals between 1965 and 1966 and once again between 1969 and 1970. The chemical exposure included Agent Orange in addition to other organic solvents and jet fuel. Since the patient had no other risk factors for the development of acute leukemia, it was very likely that the patient's previous exposure to toxic chemicals which have been associated with increased risk of cancer and leukemia may have contributed to the development of his terminal illness. This being the case, I would recommend that his diagnosis of aplastic anemia, evolving into acute leukemia be considered a service-connected illness and that [the veteran] and his family would therefore be entitled to benefits secondary to the illness that he incurred as a result of his service to his country. As noted previously, however, the VA has specifically determined after several years of study that leukemia is not one of the diseases which has positively been associated with exposure to herbicides such as Agent Orange. Although Dr. Goslin, as a competent professional, may believe that such a connection does medically exist, he has not provided any information, medical treatises, clinical studies, or other probative evidence which supports his finding that the veteran's alleged exposure to herbicides in Vietnam, as well as exposure to jet fuels and other chemicals during service, "may have contributed to the development" of a terminal illness. Thus his conclusion appears to be wholly speculative. Furthermore, regulations provide that a causal connection must be shown between incidents in service, and the cause of the veteran's death. 38 C.F.R. § 3.312 (1994). Even if an incident in service is considered by a physician to have been a "contributing" factor, service connection for the cause of death may not be granted in the absence of evidence demonstrating a causal connection between the veteran's death and his active service. See Van Slack v. Brown, 5 Vet.App. 499 (1993). We also referred the entire claims folder for review by a VA specialist in hematology and oncology, and in December 1993, Dr. P. Tantranond of the Bay Pines, Florida, VA Medical Center, issued his findings. As previously noted, he disputed Dr. Goslin's opinion that the veteran suffered from aplastic anemia. It is my opinion that [the veteran] developed a form of myeloproliferative disorders so called agnogenic myeloidmetaplasia with myelofibrosis and rapidly transformed into acute myelogenous leukemia which caused his demise in December 1987. This transformation does occur in 12% of the patients with agnogenic myeloidmetaplasia. Myeloproliferative disorder is a disease of stem cells disorders. At present, the etiology is unknown, however, a small proportion of the patients is (sic) associated with the preceding exposure to ionizing radiation and exposure to benzene compound. To my knowledge, the only malignancies associated with Agent Orange exposure are soft tissue sarcoma, Hodgkin's Disease, and Non-Hodgkin's Lymphoma. The alleged exposure to organic solvents and jet fuel during his duty as a jet pilot is so vague and did not appear to be a direct exposure. I cannot state with certainty, if this indirect exposure to the jet fuel or organic solvents during his active duty as a jet pilot played a role in development of his myeloproliferative disorder. If this is the case, it would be by pure speculation. Although Dr. Tantranond could not opine with certitude that the veteran's alleged exposure to various chemicals and jet fuel during service did not contribute to the development of his terminal illnesses, Dr. Tantranond likewise found that any connection would be "pure speculation." In an informal hearing presentation submitted in March 1994, the appellant's representative criticizes Dr. Tantranond's findings, complaining that the physician should have "inquired of Naval authorities or tried to visualize the conditions under which a Marine combat pilot operated during the Vietnam war" instead of focusing on the vague and alleged nature of the veteran's exposure to chemical during service. We note, however, the Dr. Tantranond's sole responsibility was to review the evidence contained in the record to determine, in his opinion, the nature of the veteran's terminal illnesses, and the possible relationship of these conditions to service. He was not under any obligation to contact the service department to verify the nature of the veteran's Vietnam service. His conclusions were to be based solely upon his application of the information contained in the claims folder to the medical expertise which he possesses as a specialist in the field of hematology/oncology. The representative also notes that during service, the veteran was found to have "an elevated SGOT" which, "while not in itself determinative of the issue here" can be a manifestation of a liver problem which "may well have been" a precursor to the cause of death. The representative then states that "we now have a probable liver abnormality during service after the acceptable basis of exposure to Agent Orange, jet fuel and organic solvents, with malignant lesions of the skin resulting from irritants followed by abnormalities of bone marrow, anemia and the fatal leukemia. (emphasis in the original). He argues that this "scenario" demonstrates "continuity of diseases beginning in service, progressing in severity and finally resulting in death." This scenario presupposes, however, that the veteran did suffer from a "probable liver abnormality" during service. The record contains no evidence, however, which supports this statement. Neither the available service medical records, nor the post- service medical evidence indicate that the veteran suffered from any underlying liver disease, and the representative's argument that a single elevated SGOT during service is indicative of a "liver abnormality" is mere supposition. With regard to the veteran's development of "malignant lesions of the skin from irritants," the record does show that the veteran sought treatment for a lesion on his right arm in May 1983. Subsequent pathological testing found this lesion to be an actinic keratosis (squamous cell cancer). The irritant leading to the development of this lesion was apparently not, however, any past exposure to chemicals or jet fuel. The veteran himself indicated in the initial treatment report that the lesion developed after he "cut his arm on a piece of metal under a car," and the resulting sore would not heal. There is absolutely no evidence in the record that this malignant lesion was related to service, or that it metastasized or spread to any other area of the veteran's body. Thus the representative's "scenario" of a chronic disease process arising out of chemical exposure in service and continuing until the veteran's death is not supported by the record. Finally, the appellant's representative argues that if we cannot grant the benefits sought based upon the current record, the slides from biopsies of the veteran's bone marrow should be obtained, and then sent to the Armed Forces Institute of Pathology (AFIP) for examination and an opinion "as to the probable duration of the malignancies noted." The Board has the duty to assist the appellant in the development of her well-grounded claim. 38 U.S.C.A. § 5107 (1994). We may secure an advisory medical opinion from independent medical personnel who are not employed by the Board where the medical complexity or controversy involved in a claim warrants such an opinion. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(c) (1994). The appellant's representative essentially argues that if the current record does not provide a sufficient basis upon which to make a positive determination, the Board should contact the AFIP, as they may be able to provide some additional positive evidence. Our duty to assist does not require us, however, to go on endless "fishing expeditions" in order to find evidence which might possibly support a claim, while the claimant waits in a passive role. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). We find that the absence of medical evidence demonstrating a causal connection between the veteran's terminal leukemia, and his exposure to chemicals and jet fuel in service, far outweighs the speculations made by the appellant, her representative, and Dr. Goslin. Inasmuch as the evidence does not demonstrate that any incident in service, or disability arising therefore, was a causal factor in the veteran's death, service connection is not warranted. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.312 (1994). ORDER Entitlement to service connection for the cause of the veteran's death is denied. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.