Citation Nr: 1552002 Decision Date: 12/11/15 Archive Date: 12/16/15 DOCKET NO. 14-15 416A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to accrued benefits. 3. Entitlement to substitution as claimant due to the death of the Veteran. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to December 1974. He died in November 2012. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. Following the issuance of the most recent supplemental statement of the case the appellant submitted additional evidence in support of her claim and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). The issue of entitlement to accrued benefits is addressed is REMANDED to the Agency of Original Jurisdiction. The appellant will be notified if further action is required by her. FINDINGS OF FACT 1. The Veteran died in November 2012; the death certificate lists the immediate cause of death as metastatic renal cancer. 2. During his active military service, the Veteran was stationed at Camp Lejeune during the period of time when the water was contaminated; thus, it is conceded that the Veteran was exposed to contaminated water during his active military service. 3. The evidence is at least in relative equipoise as to whether the Veteran's metastatic renal cancer is related to his active duty to service. 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 2014); 38 C.F.R. § 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for Cause of Death The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for the cause of a veteran's death may be established if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 be a contributing cause, it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). A service-connected disability is one that was incurred in or aggravated by active service; one that may be presumed to have been incurred or aggravated during such service; or, one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. For certain chronic disorders, to include cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Board notes that the Director of Compensation and Pension Service issued a Training Letter 10-03 in April 2010 in which it was acknowledged that persons residing or working at the U.S. Marine Corps Base at Camp Lejeune from the 1950s to the mid-1980s were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). Two of the eight water treatment facilities supplying water to the base were contaminated with either trichloroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE) from an off-base dry cleaning facility. The Department of Health and Human Services' Agency for Toxic Substances and Disease Registry (ATSDR) estimated that TCE and PCE drinking water levels exceeded current standards from 1957 to 1987 and represented a public health hazard. In addition to TCE and PCE, ATSDR has also indicated that high concentrations of benzene, Vinyl Chloride, and trans-1, 2-dichloroethylene (1, 2-DCE) were detected in the drinking water system. The National Academy of Sciences' National Research Council (NRC) and the ATSDR have undertaken studies to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), the NRC reviewed previous work done by the ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, the NRC focused on diseases associated with TCE, PCE, and other VOCs. It is important to note that to date, no definitive scientific studies have provided conclusive evidence that an individual who served at Camp Lejeune during the period of water contamination developed a particular disease as a result of that service. Many unanswered questions remain regarding the levels of water contamination at various base locations, the amount and type of exposure experienced by any given veteran who served there, and the scientific probability that a veteran's particular claimed disease resulted from the service at Camp Lejeune rather than from some other source. As a result, there are currently no "presumptive" diseases attributed to service at Camp Lejeune by statute, regulation, or VA policy. Based on analyses of scientific studies involving these chemicals, the NRC provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. The NRC analysis has found that no diseases fell into the categories of sufficient evidence of a causal relationship or sufficient evidence of an association with the chemical contaminants. However, fourteen diseases were placed into the category of limited/suggestive evidence of an association. These fourteen diseases include kidney cancer, renal toxicity, and hepatic steatosis. See 38 U.S.C.A. § 1710(e); 38 C.F.R. § 17.400. While none of these conditions are presumptively associated with service at Camp Lejeune, manifestation of any of those diseases is considered to be sufficient to conduct a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. After reviewing the evidence of record and resolving all doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran's death is warranted. The appellant contends that the Veteran's death was related to service. Specifically, the appellant argues that his exposure to contaminated water at Camp Lejeune during service caused him to develop his fatal cancer. As previously noted the Veteran died in November 2012 and the death certificate lists the immediate cause of death as metastatic renal cancer. The Veterans service records confirm that he served at Camp Lejeune during a period of time known to be associated with the contaminated water. Accordingly, it is conceded that the Veteran was exposed to contaminated water during his active military service. The service treatment records contain no finding or diagnosis consistent with kidney cancer. After service, private treatment records show that in 2007 he presented with low back pain migrating to the abdominal area. Imaging studies showed a subcapsular bleed in the kidney with associated mass and a left periaortic lymph node. A CT guided needle biopsy revealed papillary cancer. Treatment records noted a history of smoking half pack a day for 15 years, ending in 1983. During his lifetime, the Veteran submitted a claim for entitlement to service connection for metastatic renal cancer as due to exposure to contaminated water while stationed at Camp Lejeune. In support of his claim, the Veteran submitted a January 2011 medical statement from Dr. M.F., his treating oncologist, who noted that the medical literature contained evidence of an association between exposure to toxins such as TCE and PCE and adverse health outcomes such as kidney cancer. Dr. M.F. indicated that while it was impossible to assign a specific cause for a specific case of kidney cancer because the population was heterogeneous in terms of age exposure history and disease pattern, given the Veteran's in-service exposure history to contaminated water, it was as likely as not that exposure to these toxins at Camp Lejeune was a the cause of the Veteran's kidney cancer. By contrast, a VA examiner in April 2011 found that the Veteran's metastatic renal cell carcinoma was not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The examiner explained that the medical literature from the NRC pertaining to any health problems from past water contamination exposure was limited, and as such, it could not be concluded that there was a cause and effect from the contaminated water exposure and the development of the malignancy. The examiner further noted that there was no objective evidence that corroborated the opinion of the Veteran's treating oncologist who associated the Veteran's kidney cancer with service. In an addendum report the following month, the examiner reiterated that the Veteran's kidney cancer was less likely as not (less than 50/50 probability) caused by or a result of service because the Veteran's exposure to toxins while stationed at Camp Lejeune was limited to a 12 week period. In statements in June 2011, Dr. I.M., an oncologist/hematologist, who reported treating the Veteran since 2007, opined that the Veteran's exposure to toxic chemicals while stationed at Camp Lejeune, to include exposure to TCE in the drinking water, was more likely than not the cause of his diagnosis of kidney cancer. In support of the opinion, Dr. I.M. cited to a September 2011 Environmental Protections Agency (EPA) report that classified TCE as carcinogenic to humans by all routes of exposure based on convincing evidence of a casual association between kidney cancer in humans and exposure to TCE. Most recently in support of her claim the appellant submitted a medical opinion report from Dr. N.T., also an oncologist, who following a review of the medical records and extensive literature on the subject, opined that the Veteran's exposure to TCE and PCE toxins through contaminated water at Camp Lejeune led to the development of metastatic kidney cancer and thus more likely than not resulted in his death. Dr. N.T. noted the Veteran's diagnosis of papillary kidney cancer in 2007, as well as a history of smoking and exposure to contaminated water in service. Dr. N.T. noted no other record of similar exposure to said toxins. Dr. N.T. determined that to the extent that cigarette smoking was noted as the cause of the Veteran's cancer, the relation between cigarette smoking and kidney cancer was not entirely clear. Studies supported a finding that smokers were 20 percent more likely, at best, to develop kidney cancer. However, cigarette smoking was mostly associated with the traditional diagnosis of renal cell carcinoma, as opposed to the rarer papillary type with which the Veteran was diagnosed during his lifetime. As such, although it was possible that cigarette smoking contributed to a minor degree to papillary cancer, the Veteran's toxin exposure during service was a larger contributor to his fatal condition. The mandate to accord the appellant the benefit of the doubt is triggered when the evidence has reached a stage of balance. In this specific instance, the Board is of the opinion that the evidence is at least in equipoise regarding the question of whether a disability of service origin contributed to the Veteran's fatal condition and ultimately aided or lent assistance to the production of his death. In view of the foregoing, the benefit of the doubt rule will be applied, and service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. §§ 1110, 1116, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2015). ORDER Service connection for the cause of the Veteran's death is granted. REMAND An October 2012 rating decision denied the Veteran's claim for service connection for kidney cancer. The Veteran was notified of this decision by November 2012 correspondence. The Veteran had one year to appeal that decision, but died in November 2012, prior to the expiration of the appellate period. The appellant filed her claim for accrued benefits in April 2013. In a statement received in October 2013, she expressed disagreement with the October 2012 rating decision that denied service connection for kidney cancer and she also filed a Request for Substitution of Claimant Upon Death of Claimant form. A January 2014 notice letter denied entitlement to accrued benefits. In the February 2014 notice of disagreement, the appellant specifically disagreed with the denial of accrued benefits. However, no Statement of the Case (SOC) has been issued which addresses accrued benefits. Additionally, in June 2015, the RO denied the appellant's request for substitution because a Notice of Disagreement had to be filed prior to the appellant's death. The appellant filed a Notice of Disagreement with that determination in July 2015. To date, an SOC has not been issued. As timely notices of disagreement were filed but an SOC with respect to these claims has not yet been issued, the Board is required to remand the issues to the AOJ for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the SOC, the claims should be returned to the Board only if the appellant perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). As a final matter, the Board notes that in Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007) the Court of Appeals for Veterans Claims (Court) held that because the one-year period for filing a Notice of Disagreement had not expired at the time of the veteran's death and the veteran's widow filed an accrued benefits claim within the time remaining in that one-year period to appeal, the widow's claims should have been reviewed on the merits. On remand, the AOJ should be mindful of the Court's holding when addressing the accrued benefits claim. Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the appellant on the claims of entitlement to accrued benefits and for substitution, so that the appellant may have the opportunity to complete an appeal on those issues (if she so desires) by filing a timely substantive appeal. The issues should only be returned to the Board if a timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs