Citation Nr: 1341665 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 12-30 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1954 until retiring in April 1974. He died in September 2008. The appellant is his surviving spouse. She appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied her claim of entitlement to service connection for the cause of his death. The Board remanded the claim in January 2013 for further development, including for a medical nexus opinion concerning whether a service-connected disability either caused or contributed substantially or materially to the Veteran's death. A VA compensation examiner provided this opinion in March 2013, but after considering that opinion and other additional evidence, the Appeals Management Center (AMC) continued to deny the claim in an August 2013 Supplemental Statement of the Case (SSOC) and returned the file to the Board for further appellate consideration of the claim. Whereupon the Board subsequently, in September 2013, requested an expert medical opinion through the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2013). The designee is a specialist in oncology, and he provided his response in October 2013. The Board provided the appellant-widow a copy of the opinion in November 2013 and gave her 60 days to submit additional evidence and/or argument in response to it. 38 C.F.R. § 20.903. Her representative submitted additional argument later in November 2013, pointing out the opinion is favorable to the claim so as to allow the granting of it. Also, apparently because of this, the appellant-widow indicated in November 2013 that she had no further argument or evidence to submit. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900 (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in September 2008 from lung cancer. 2. He was exposed to ionizing radiation during his service. 3. The medical and other evidence is at least in relative equipoise, if not entirely favorable to the claim, concerning whether his terminal lung cancer is the result of or relates back to his radiation exposure in service. CONCLUSION OF LAW A service-connected disability caused or contributed substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. Because the Board is granting this claim, it need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations. II. Merits of the Claim The appellant-widow is claiming entitlement to service connection for the cause of the Veteran's death. The Veteran served on active duty from April 1954 until retiring in April 1974. He died in September 2008. The cause of death was lung cancer, and is listed as such on his death certificate. At the time of death, he did not have any adjudicated service-connected disabilities, but during the pendency of this appeal service connection was granted posthumously for his hypertension effective July 18, 2008, for the purpose of his widow-appellant receiving accrued benefits (i.e., benefits that were due and unpaid at the time of his death). The terminal lung cancer, however, has not to this point also been determined to be a service-connected disability. The law provides Dependency and Indemnity Compensation (DIC) benefits for a spouse of a deceased Veteran even if he was not service connected for it at the time of his passing. See 38 U.S.C.A. § 1310. In this situation, "the DIC claimant must establish service connection for the cause of the veteran's death." Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Thus, the same standards, theories, and criteria for service connection are used. Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a claimant must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain conditions, including malignant tumors (so cancer), will be presumed to have been incurred in service if manifested to a compensable degree, generally meaning to at least 10-percent disabling, within one year after discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In this case, the Veteran's first cancer diagnosis came approximately 30 years after his separation from service, so the presumption is not available to establish entitlement to service connection for this disease. In order to grant a claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the claimant prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. There is no question regarding the existence of the lung cancer, and that it caused the Veteran's death, so was ultimately fatal, nor his exposure to ionizing radiation while on active duty. So all that remains is establishing the required nexus or correlation between the radiation exposure in service and his eventual death from this disease. He served as a nuclear weapons maintenance technician and instructor while in service. In a July 2008 statement, he competently claimed that, for 20 years, he had performed wipe-downs of atomic weapons in order to keep the radiation count down. He stated he did so using rubber gloves and tissue. Because the RO could not confirm any radiation exposure from the records concerning his service, it solicited confirmation of exposure and a dose assessment from the Air Force Medical Support Agency. Upon search of the Master Radiation Exposure Registry the agency found a total effective dose equivalent (TEDE), or the sum of both external and internal dosage, of 0.000 rem for the Veteran. The RO also made inquiry to the Air Force Safety Center, which determined the Veteran had the potential to be exposed to ionizing radiation from duties as a nuclear weapons maintenance technician and instructor, and estimated his maximum TEDE for his entire 20-year career to be 5.5 rem, with a separate extremity dose estimation for his hands and forearm of 32 rem. This evidence was forwarded to the Under Secretary for Health for an opinion concerning the relationship of exposure to ionizing radiation and the Veteran's lung cancer. An April 23, 2011 memorandum stated that rem exposure below 5-10 rem, including occupational and environmental exposures, poses risks for health effects that are either too small to be observed or nonexistent, and concluded that because the Veteran's radiation dose was not estimated to exceed 5 rem in one year or 10 rem in a lifetime, it was unlikely his terminal lung cancer could be attributed to radiation exposure while in the military. The Director of the Compensation and Pension Service provided a May 3, 2011 review of all of the relevant evidence of record. This review noted the Veteran's time spent in service, the date of his lung cancer diagnosis, the fact that had smoked one and a half packages of cigarettes per day for 15 years before reportedly quitting in 1971, and his post-service employment and concluded there was no reasonable possibility that his fatal lung cancer was the result of radiation exposure during his military service. The appellant-widow's claim was remanded in January 2013, in part, to obtain both private and service treatment records (STRs), but also to obtain a medical nexus opinion from a VA physician regarding the likelihood that a service-connected disability either caused or contributed substantially or materially to the Veteran's death from lung cancer. This requested opinion was provided in March 2013, with the commenting physician seemingly concluding the Veteran's death was less likely than not caused by his hypertension. Instead of explicitly stating this, the examiner checked a generic box that stated "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." As rationale, the examiner stated that hypertension is not known to cause or contribute to the development of lung cancer, whereas smoking accounts for 90% of lung cancers worldwide. She also stated that radiation therapy, environmental toxins, pulmonary fibrosis, HIV infection, genetic factors, and dietary factors account for the remainder of risks for lung cancer. Perhaps because of the wording of the VA examiner's opinion, the AMC, which oversaw the remand development in lieu of the RO, requested an independent opinion. The independent examiner, in agreement with the March 2013 VA compensation examiner, opined that it was less likely than not (less than 50 percent probability) that the Veteran's death from lung cancer was incurred in or caused by a service-connected disability, including hypertension. The examiner also stated that it was less likely than not that any ailments the Veteran had suffered in service, including pneumonia, upper respiratory infection (URI), and bronchitis, had contributed substantially or materially to his death from lung cancer. However, the independent examiner also stated that it was his opinion, "not in agreeance with the various examiners, that the Veteran's claimed condition of lung cancer, which was his cause of death, was at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's active military service exposure to ionizing radiation as a nuclear weapons technician in the U.S. Air Force." The examiner questioned both the Air Force Medical Support Agency's, as well as the Air Force Safety Center's, radiation exposure figures for the Veteran, stating "it is not credible that a nuclear weapons technician, who spent a career in the U.S. Air Force with his hands inside the shells of nuclear weapons" would have low numbers as stated in both reports. The examiner also considered the probable dosage, relative sensitivity of the involved tissue to induction, the Veteran's genetic and family history, the Veteran's age at the time of exposure, the time-lapse between exposure and onset of the disease, and the extent to which exposure to radiation or other carcinogens outside of service may have contributed to development of the disease. The Board therefore in September 2013 solicited a VHA medical expert opinion from an oncologist to try and reconcile the conflicting opinions already of record. The October 2013 VHA opinion concluded the Veteran's lung cancer was "at least as likely as not (50 [percent] probability) due to his chronic exposure to ionizing radiation for 20 years during his service as a nuclear weapon maintenance technician and instructor." As rationale, the examiner explained that smoking and radiation exposure have a "multiplicative effect," meaning that the combined effect poses a much greater risk of the development of lung cancer than that of each condition by itself. The examiner also cited to the Veteran's age and his use of only rubber gloves when handling the radioactive materials. Finally, the examiner stated that the passage of time (32 years) before onset was not a relevant fact as the incidence of some tumors remains steady throughout one's life following exposure. Certainly then, there is just as much probative evidence supporting this cause-of-death claim as there is against it. Thus, with application of the benefit-of-the-doubt doctrine, service connection for cause of death is warranted. 38 C.F.R. § 3.102; See Gilbert, 1 Vet. App. at 49. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. ORDER The claim of entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs