Citation Nr: 1801766	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  16-25 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUE

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


REPRESENTATION

Appellant represented by:	Stacey Penn Clark, Esq., Morgan & Morgan


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

K. Wysokinski, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1959 to September 1963.  His death certificate indicates that he died on August [REDACTED], 2012.  The Appellant claims as his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

The record indicates that the Appellant's claim may have been administratively closed or denied sometime around November 2013 because she did not provide requested evidence.  However, no formal rating decision reflecting this denial is of record.  The only rating decision of record is the July 2014 decision on appeal.  Consequently, the Board does not treat the matter as a claim to reopen since no final decision on the merits appears before the decision on appeal.  Should there be any question regarding whether new and material evidence has been submitted, the record clearly demonstrates that it has since there essentially was no evidence in November 2013.  

The Appellant presented sworn testimony at a hearing before the undersigned in September 2017.  A transcript of that hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

FINDING OF FACT

The most probative evidence of record shows that amyloidosis caused by exposure to contaminants at Camp Lejeune was the contributory cause of the Veteran's death.  


CONCLUSION OF LAW

The criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.312.


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board finds the requirements for entitlement to service-connection for the Veteran's cause of death have been met as the most probative evidence of record shows that amyloidosis caused by exposure to contaminants at Camp Lejeune was the contributory cause of the Veteran's death.  

The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death.  See 38 U.S.C. § 1310; see also 38 C.F.R. 
§ 3.312.  A service-connected disability is considered the "principal" cause of death when that 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.  38 C.F.R § 3.312(c).  A contributory cause must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death."  Id.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or 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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

In this case the biggest question for the Board is whether the Veteran's amyloidosis was caused by his exposure to contaminants at Camp Lejeune.  In that regard, there are two conflicting medical opinions which the Board thinks it necessary to address.  First is the opinion of the VA Subject Matter Expert (SME) who opined that there was no known relationship between amyloidosis and solvent exposure.  The second opinion is from an Independent Medical Expert (IME), Dr. CK, M.D, and PhD where the IME opines that the Veteran's amyloidosis was more likely than not caused by exposure to contaminants in the water at Camp Lejeune.  The IME concludes that the known carcinogens that were found at Camp Lejeune (e.g. TCE PCE, and benzene) are recognized as presumptively responsible for several cancers that target bone marrow cells as a result of cell mutations, and that the cell mutations caused by exposure to these carcinogens is what was responsible for the development of the Veteran's amyloidosis which is also a bone marrow cancer.  The Board finds the IME opinion to be more highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  While the Board appreciates the VA SME's opinion, the IME opinion comes from a physician for whom cancers are a specific area of expertise and is also much more extensive with respect to the Veteran's specific case.  

Because the Board finds the IME opinion most probative, it consequently finds that the Veteran's amyloidosis resulted from the in-service exposure to contaminants at Camp Lejeune.  Accordingly, service-connection for amyloidosis is established. 
Since service-connection is established, the Board must decide whether amyloidosis caused or contributed to the Veteran's death.  In that regard, there is essentially only affirmative evidence indicating that it did.  There is no dispute that the Veteran's causes of death were cardiac and kidney failure.  The only question from the Board is what role, if any, amyloidosis had in causing these.  While the VA SME opinion provides alternative explanations for the Veteran's cardiac failure and kidney failure, it does not say that amyloidosis was not a contributing factor.  Therefore, the Board is left only with the IME opinion which specifically explains why cardiac failure and kidney failure were the direct result of amyloidosis.  Accordingly, the Board finds that the Veteran's service-connected amyloidosis was the immediate or underlying cause of death or was etiologically related thereto.  

ORDER

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




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs