Citation Nr: 1751923 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-02 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to contaminated water exposure. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to May 1993. He died on November [REDACTED], 2012. The appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appellant provided testimony at a May 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. The Veteran was stationed at Camp Lejeune from May 1979 to April 1980, June 1983 to September 1985, and November 1986 to December 1987, and as a result, is presumed to have been exposed to contaminated water. 2. The Veteran's cause of death was liver cancer, specifically adenocarcinoma of the liver. CONCLUSION OF LAW Adenocarcinoma of the liver is presumed to have been incurred in service. A disability presumed to have been incurred in service resulted in death. 38 U.S.C.A. §§ 1101, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In cause of death claims, VA must also provide notice of the conditions, if any, for which a veteran was service-connected at the time of death, an explanation of the evidence and information required to substantiate a dependency and indemnity (DIC) claim based on a previously service-connected condition, and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). However, as the claim is granted, VCAA compliance need not be addressed further for this issue. II. Cause of Death DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310 (West 2014). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312. 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or 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). A contributory cause of death is inherently one not related to the principal cause. 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; or that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). There are two issues to determine if service connection is warranted in this claim on a presumptive basis: whether the Veteran had no less than 30 days of service at Camp Lejeune and whether the Veteran's cause of death was due to an enumerated disease associated with exposure to contaminated water at Camp Lejeune. The record reflects the Veteran was stationed at Camp Lejeune during active service from May 1979 to April 1980, June 1983 to September 1985, and November 1986 to December 1987. Therefore, the Board finds the Veteran met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii). Concerning the Veteran's cause of death, the death certificate lists liver adenocarcinoma. A liver biopsy performed shortly before in September 2012 similarly yielded adenocarcinoma with extensive necrosis. In a letter dated May 2017, the supervisor of the author of the death certificate, R. T., M.D. opined the adenocarcinoma of the Veteran's liver is the likely diagnosis. He referenced the Veteran's medical records, which included radiology studies, colonoscopy, esophagogastroduodenoscopy (EGD), and tissue biopsies of the liver. Although not a treating or examining source, he reviewed records from the Veteran's file and provided a sufficient supporting rationale for his opinion, which is therefore entitled to probative weight. As liver cancer is considered associated with exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f), the Veteran's liver adenocarcinoma is presumed to have been incurred in service. Based upon the evidence of record, the Board concludes that the Veteran was stationed at Camp Lejeune during the relevant period and is therefore presumed to have been exposed to contaminated water. As the Board has found that the Veteran was exposed to contaminated water in-service, service connection for liver cancer is presumed. 38 C.F.R. §§ 3.307, 3.309. Consequently, 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. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs