Citation Nr: 1439338 Decision Date: 09/04/14 Archive Date: 09/09/14 DOCKET NO. 11-00 346 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to March 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). Local jurisdiction of the appeal was subsequently transferred to the Detroit, Michigan, RO. In August 2014, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). Although the appellant was not provided with a copy of the opinion, the Board is granting the benefit sought in full, so such action was not necessary. FINDINGS OF FACT 1. The Veteran died in January 2010; the death certificate lists the immediate cause of death as cardio respiratory failure, due to pulmatory metastasis, due to recurrent osteosarcoma. 2. The Veteran's osteosarcoma was due to chemical or radiological exposure during active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for the cause of the Veteran's death. The death of a veteran will be considered service-connected when the evidence establishes that a service-connected disability contributed substantially or materially to the production of death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. § 3.312(a) (2013). According to his death certificate, the Veteran died in January 2010 at the age of 49. The death certificate lists the cause of death as cardio respiratory failure, due to pulmatory metastasis, due to recurrent osteosarcoma. The appellant contends that the Veteran's osteosarcoma was the result of chemical exposure during active service at Fort McClelland, Alabama. According to evidence of record, the Fort was home to the U.S. Army Military Police School, and the U.S. Army Chemical School, which was the principal chemical and biological training center for the U.S. Department of Defense from 1951 to 1973. The Fort was the only facility in the country where live chemical agents were used during training. Part of the base was used as a radiological training area for simulated large area radioactive contamination (fallout) from the surface detonation of a small yield nuclear weapon. The Fort also had facilities for storage and disposal of nuclear, biological, and chemical weapons. In 1999, the Fort was declared a toxic site and closed. A Nuclear Regulatory Commission (NRC) report, dated January 2001, shows that random soil samples taken from the Fort in 1996 contained radioactive waste, to include cesium 137 and cobalt 60. The cobalt 60 concentrations varied between 1.6 and 187 pCi/g for surface samples and from 0 to 330 pCi/g for sub-surface samples. Acceptable levels of cobalt 60 are below 2.3 pCi/g. Cesium 137 samples varied from 0.2 to 179 pCi/g for the surface samples and from 0 to 12 pCi/g for subsurface samples. Acceptable levels of cesium 137 are below 9.2 pCi/g. Service records place the Veteran at the Fort for military police training in 1981. The storage, use, and disposal of chemical and radiological materials between the 1950s and the 1970s rendered the Fort a toxic site as late as 1999. Resolving reasonable doubt in the Veteran's favor, the evidence tends to reflect that he was exposed to some level of chemical or radioactive material during his service at Fort McClelland. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Regarding a possible relationship between the Veteran's cancer and his service, his treating physicians, Dr. Chugh, M.D., and Dr. Wood, M.D., in May 2010 and July 2010 letters, expressed the opinions that it is at least as likely as not that the Veteran's cancer is related to exposure to chemical or radiological agents during his active service. In September 2011 and October 2011 letters, the physicians again commented on the matter. In August 2014, a VHA medical expert opined that it is at least as likely as not that the Veteran's osteosarcoma was due to chemical or radiological exposure during active service. The VA doctor of hematology and medical oncology noted that the Veteran's osteosarcoma is very rare with less than 35 cases having been reported in the literature. The doctor noted that the only established environmental risk factor is exposure to ionizing radiation from previous radiotherapy treatment for cancer. There are just not enough known cases to solidly link it to a specific environmental exposure. Nevertheless, assuming that the Veteran was exposed to some level of chemical or radioactive material while at Fort McClelland, the doctor provided the above opinion. Having given due consideration to all pertinent lay and medical evidence in the case, the Board finds that the evidence of record suggests that the Veteran's death was proximately due to or the result of chemical or radiological exposure during his active duty service. The appellant need not provide 100 percent proof of her claim. Her burden is to support the claim to an equipoise standard. This has been done here as there are three medical experts who have linked the Veteran's osteosarcoma to his military service. The experts are not certain, but they provide sufficient evidence to support the claim when reasonable doubt is resolved in the appellant's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs