Citation Nr: 1603686 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-23 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active military service from May 1961 to April 1968. The appellant is his spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. FINDINGS OF FACT 1. The Veteran died of high-grade transitional cell cancer of the bladder with metastases. 2. At the time of the Veteran's death, the Veteran was not service-connected for any disability. 3. The Veteran's cause of death was the result of exposure to tetrachloroethylene and methylene chloride during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As the Board grants service connection for the cause of the Veteran's death, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Merits of the Claim The appellant contends that the Veteran's death caused by high-grade transitional cell cancer of the bladder with metastases was the result of in-service exposure to tetrachloroethylene and methylene chloride during active duty. To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 2014); 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 constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. The standards and criteria for determining whether or not a disability is service-connected for purposes of 38 U.S.C.A. § 1310 are the same as those applicable under 38 U.S.C.A. chapter 11. 38 U.S.C.A. § 1310(a). The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's service personnel records noted that during his active duty, he worked mostly in mechanical and electronic communications during which he reported that he used tetrachloroethylene and methylene chloride to clean equipment every day. A personnel record dated February 1966 noted that the Veteran's duty required him to use or to be exposed to fumes escaping from a 14 gallon degreaser containing tetrachloroethylene cleaning solvent approximately 4 hours per day. Concentrations of tetrachloroethylene ranged from 0-35 ppm in the general work environment and were approximately 160 ppm at the degreaser opening. The total cleaning operation which would have exposed him to the higher concentrations took a maximum of 20 minutes and was performed by the Veteran approximately one time per month. Additionally, the Veteran used approximately one pint of methylene chloride in this area per month for small part cleaning. This operation lasted five to ten minutes and was performed intermittently throughout the week. An average time estimate for this work would have been one hour per week. Immediately post-service the Veteran worked repairing electronic equipment for the board of education. He then worked for Kentucky Fried Chicken repairing equipment. He denied using chemicals in either job. Starting in 1991, he worked for a trucking company hauling various things, including hazardous substances: cadmium and zinc. The Veteran retired in 2002. The record also noted that the Veteran was a photographer who did his own film development. A December 2009 VA examiner determined that it was less likely as not that the Veteran's bladder cancer was caused by or the result of the Veteran's exposure to chemicals during service. In providing a rationale for her opinion, the December 2009 VA examiner noted that bladder cancer is the fourth most common cancer in men with 68,000 new cases per year. Although the Veteran had documented service exposure to one probable and one possible/probable carcinogenic agent, his actual exposure was relatively limited, 28 hours of maximum exposure to Tetrachloroethylene and 15 days to methylene chloride over a 7 yr service period. Additionally the Veteran reported exposure to other potentially carcinogenic agents in his post-service employment, therefore it is less likely as not that the Veteran's current bladder cancer was caused by or a result of Veteran's exposure to chemicals during service. In an October 2015 statement, the Veteran's representative noted that while the December 2009 VA examiner had cited to the Veteran's post-service exposure to chemicals, there was little evidence that the Veteran had actually been exposed to chemicals post-service either occupationally or recreationally. Additionally, the representative noted that the Environmental Protection Agency (EPA) has updated their data regarding tetrachloroethylene since the December 2009 examiner rendered her opinion. With regard to cancer risk, the EPA stated: "[s]tudies of dry cleaning workers exposed to tetrachloroethylene have shown associations between exposure to tetrachloroethylene and several types of cancer, specifically bladder cancer, non-Hodgkin lymphoma and multiple myeloma. There is also limited evidence suggestive of associations with esophageal, kidney, cervical and breast cancer." Given the above, the Board sought the opinion of an oncologist with the Veteran's Health Administration (VHA) to determine if the Veteran's exposure to tetrachloroethylene and methylene chloride during active duty could have caused the high-grade transitional cell cancer of the bladder with metastases which caused the Veteran's death. In this regard, in a January 2016 opinion, a VA oncologist determined that based on a review of the available records and medical literature, it was at least as likely as not that the Veteran's diagnosis or transitional cell carcinoma of the bladder was due to the exposure to tetrachloroethylene while in service. As a rationale, the examiner noted that the Veteran had documented exposure to tetrachloroethylene while performing his job duties during his military service and there were no other established risk factors that may have resulted in the Veteran developing bladder cancer. Specifically, the Veteran lacked other risk factors in that he was a lifetime non-smoker and did not have a family history of bladder cancer. Additionally, with regard to post-military exposure, there was no documentation of exposure to other chemicals or hazards that may be linked with bladder cancer. As the evidence is at least in equipoise regarding whether the Veteran's high-grade transitional cell cancer of the bladder with metastases was the result of exposure to tetrachloroethylene during active duty service, the Board finds that service connection should be granted for cause of death. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs