Citation Nr: 1328906	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  07-35 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for the cause of death of the Veteran. 


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Appellant and her mother




ATTORNEY FOR THE BOARD

Tanya A. Smith, Counsel


INTRODUCTION

The Veteran had active duty from July 1972 to June 1974, May 1975 to May 1977, and August 1977 to August 1988.  He died in May 2006.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the appellant's claims of entitlement to service connection for the cause of the Veteran's death, and entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318.  The appellant submitted a notice of disagreement with this determination in June 2007 and timely perfected her appeal in November 2007.
In September 2007, the appellant notified VA that she relocated to Nevada. Accordingly, the Reno, Nevada, RO assumed jurisdiction of the aforementioned claims.

In March 2008, the appellant presented sworn testimony during a personal Board hearing in Reno, Nevada, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  In September 2009, the Board denied the appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318, and remanded the claim of entitlement to service connection for the cause of the Veteran's death for additional evidentiary development.  Thereafter, in a January 2011 decision, the Board denied service connection for the cause of the Veteran's death.  The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2012, the Court issued a memorandum decision, set aside the Board's decision, and remanded the matter to the Board for further proceedings consistent with its decision.  The case was subsequently returned to the Board.  In June 2013, the appellant's representative submitted additional argument and evidence accompanied by a waiver of the appellant's right to have this evidence initially considered by the RO.  Accordingly, the Board may consider this evidence in the first instance.  See 38 C.F.R. § 20.1304(c) (2012).


FINDING OF FACT

There is probative competent and credible evidence of record that shows that the Veteran was likely exposed to jet engine fuel and other contaminants during his military service, which led to the development of renal cell carcinoma-the immediate cause of his death.


CONCLUSION OF LAW

The criteria for establishing service connection for the cause of the Veteran's death have been met.  38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless.

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.  38 C.F.R. § 3.312(a) (2012).  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(b) (2012).  Contributory cause of death is inherently one not related to the principal cause.  C.F.R. § 3.312(c)(1) (2012).  In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; and that it aided or lent assistance to the production of death.  Id.  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.  Id.  

Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  C.F.R. § 3.312(c)(3) (2012).  

The Veteran died in May 2006.  The initial certificate of death lists the immediate cause of death as due to renal cell carcinoma.  The amended certificate of death adds that diabetes mellitus was a significant condition contributing to his death.  At the time of the Veteran's death, service connection was in effect for diabetes mellitus rated as 60 percent disabling and tinnitus rated as 10 percent disabling.  Service connection for diabetes mellitus was granted on the basis of an in-service diagnosis of the disease.  

When this appeal was previously before the Board, the appellant's sole contention was that the Veteran's service-connected diabetes mellitus caused or contributed to his death.  In this regard, three unfavorable VA medical opinions were of record.  Specifically, in a September 2006 VA opinion, the examiner (Dr. C.L.) opined that the Veteran's death due to renal cell carcinoma was not caused by or a result of the Veteran's service-connected diabetes mellitus.  In a February 2007 VA opinion, the examiner (Dr. J.D.) opined that regardless of what was added to the death certificate, the Veteran's death was exclusively due to nonservice-connected renal cell carcinoma and metastatic renal cell carcinoma.  In a March 2010 VA opinion, the examiner (Dr. K.F.) opined that the Veteran's diabetes mellitus was not the principal or contributory cause of death, and did not affect a vital organ.  The examiner found that there was no objective evidence that the diabetes mellitus caused general impairment of health such that the Veteran was materially less capable of resisting the effects of the renal cell carcinoma, or was of such severity as to have a material influence in accelerating death.  

Following remand from the Court, the appellant's representative submitted a favorable medical opinion that addressed new theories of entitlement.  In an April 2013 opinion, Dr. W.G. found that it was more likely than not that the Veteran developed cancer as a result of his exposure to jet engine fuel as a jet test cell operator and his exposure to other contaminants during service.  Dr. W.G. explained that during the Veteran's fourth and fifth tours of duty he worked as a jet test cell operator, specialty AD-6422, on the Naval Air Station (NAS) at Cubi Point in the Philippines and Whidbey Island in the State of Washington [as shown on the Veteran's DD Form 214s].  All of the Navy jets used a fuel called JP-5, and a Canadian study found a greater than 300 percent increased risk of kidney cancer in persons exposed to jet fuel.  Also, Whidbey Island was a toxic waste site (placed on the Environmental Protection Agency National Priorities List in February 1990), and the Jet Engine Test Cell facility was located in Area 52 of the base.  Chemical contaminants (Cadmium, Lead, trichloroethylene) found at NAS Whidbey have been specifically linked to the development of kidney cancer by a German study and the EPA. 

Dr. W.G. then found that the Veteran's poorly-controlled diabetes might have exacerbated the problem by weakening his immune system.  Dr. W.G. explained that the Veteran developed diabetes in service and was unable to control his blood sugars which would have weakened his immune system so any DNA mutations caused by the chemical exposures would be less likely to be detected and eradicated.  Dr. W.G. noted that the Veteran had his first symptom of kidney cancer at an age (47) that was younger than the average (64) which would argue against the sporadic development of kidney cancer.  The Veteran also had no family history of the disease or heritable risk factors for development of the disease.  Therefore, Dr. W.G. concluded that the Veteran's death was service connected.    

Dr. W.G. also found that after the Veteran was diagnosed with renal cell cancer, he received substandard surgical care and an unacceptably long delay in the initiation of adjuvant chemotherapy which resulted in the loss of a chance for a cure.  Dr. W.G. explained that one of the margins of the resectioned specimen was positive so the tumor was left behind and there was no indication in the record that this was recognized by the surgeons.  Consequently, the expected completion of the nephrectomy was not done or even recommended.  Dr. W.G. maintained that it was not surprising the Veteran's cancer recurred because it was never completely removed.  The Veteran did not receive any chemotherapy for almost five years until he was diagnosed with metastatic renal cell cancer to the lungs and mediastinum in December 2005.  Dr. W.G. therefore concluded that the medical decision-making following the surgery was substandard and did not meet the standard of care.  

In regard to the direct theory of entitlement to service connection for the Veteran's cause of death, the Board finds Dr. W.G's opinion persuasive.  Dr. W.G.'s opinion is based on a review of the Veteran's "service records, medical history, family medical history, and the VA medical reports from February 2007 and March 2010," and based on the conduction of an "extensive literature review."  Dr. W.G. included attachments containing public health assessments by the Agency for Toxic Substances and Disease Registry.  Dr. W.G.'s opinion is very thorough and based on sound medical principles.  There is no opinion to the contrary that addresses Dr. W.G.'s theory that in-service exposure to jet engine fuel and other contaminants triggered the chain of events that led to the development of the Veteran's cancer.  For these reasons, the Board places great evidentiary weight on this favorable opinion, and therefore finds that service connection for the cause of death of the Veteran is warranted.  In so finding, the Board need not address the other theory of entitlement (compensation under 38 U.S.C. § 1151) essentially raised by Dr. W.G as it is rendered moot. 


ORDER

Service connection for the cause of death of the Veteran is granted. 



____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs