Citation Nr: 18140553 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 10-33 172 DATE: October 3, 2018 ORDER Service connection for cause of the Veteran’s death is denied. FINDING OF FACT 1. The Veteran died in September 2008 from metastatic malignancy most likely renal, large right kidney mass, and renal failure. 2. The Veteran’s death was not caused by service-connected disability or otherwise related to service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to April 1969. He died in September 2008. The appellant is his surviving spouse. The case is on appeal from a December 2008 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Service connection for cause of the Veteran’s death. Legal Criteria 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. § 1110; 38 C.F.R. § 3.303. “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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When a veteran dies from a service-connected disability, the veteran’s surviving spouse may be entitled to disability and indemnity compensation (DIC) benefits for the cause of death. 38 C.F.R. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312.   Analysis The appellant is claiming that her husband’s death is related to service. Specifically, she contends that his renal cancer was caused by exposure to tactical herbicide such as Agent Orange or ingested arsenic in Agent Blue. Alternatively, she contends that his cancer was caused by asbestos exposure. There is no theory advanced of any connection between the Veteran’s sole service-connected disability for residuals of a muscle group VII injury and the cause of death. While the Veteran served in the Republic of Vietnam and is presumed to have been exposed to certain herbicide agents, 38 U.S.C. § 3.307(a)(6), renal cancer is not one of the conditions presumed to have been caused by tactical herbicide agents, 38 U.S.C. § 3.309(e). In January 2017, a medical opinion was obtained to determine whether the Veteran’s cause of death was related to service. First, the examiner considered exposure to Agent Orange and renal cancer and cited to the 2012 Veterans and Agent Orange update. The examiner noted that renal cancer was twice as common in men than women, that Black men have a higher incidence than White men, and that with the exception of Wilms tumor, renal cancer is more common in people over 50. It was also noted tobacco use was a well-established risk factor for renal cancer. Other potential risk factors included obesity, heavy acetaminophen use, kidney stones, occupational exposure to asbestos, cadmium, and organic solvents. Ultimately, the examiner noted that it was concluded that there was “inadequate or insufficient information to determine whether there is an association between exposure to the COIs and renal cancer.” It was noted that independent medical literature review showed no other medical studies that had conclusively linked Agent Orange (Dioxin) or Agent Blue (an herbicide containing cacodylic acid) to the later development of renal cancer. The examiner next addressed the asbestos theory. The examiner explained that although there was evidence “albeit weak” of an association between asbestos and renal cancer, as is the case with association of asbestos with a wide variety of other cancers, there appeared to be a linear, dose-response relationship, with increasing dose producing increasing disease. The examiner then noted that the claimed use of asbestos gloves when changing hot barrels had an “extremely low” probability of asbestos getting inside the body which the examiner noted was through the respiratory route. Therefore, the probability of such an exposure with no clinical evidence of pulmonary asbestosis or exposure in this case was highly unlikely to have caused the Veteran’s renal cancer. The examiner noted that the referenced articles referred to occupational exposures in much larger amounts in the cohorts that were exposed as compared to the minimal probability military asbestos exposure in the Veteran’s case. However, the examiner did note that the Veteran’s smoking history was unknown while highlighting that smoking has a much higher probability of causing renal cancer. The examiner further noted that the Veteran’s occupational history was not clear but that the Veteran’s occupation was noted as “heating and air” on his death certificate. The examiner then stated that this occupation had a high probability of asbestos exposure by itself, and that there was a “several fold higher likelihood [sic] that [the Veteran’s] post service occupational exposure was responsible for development of this cancer.” The January 2017 opinion was by a VA staff physician. The opinion is persuasive as the conclusions are supported by a comprehensive rationale. In a June 2017 brief, the appellant’s representative highlighted that the June 2015 Board decision called for an opinion from an appropriate specialist. As such, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) to afford the appellant every reasonable assistance for the claim. A VHA opinion was obtained and authored by Dr. R.A., a specialist in oncology; thus, a medical professional with great expertise in this area of medicine. Dr. R.A. found that the Veteran’s cause of death was less likely than not related to asbestos or herbicide exposure. In forming his conclusion, he noted a review of the Veteran’s medical records, prior medical opinion, and most recent literature in regard to renal carcinoma, agent orange, and asbestos. First, with respect to asbestos, Dr. R.A. stated that the increased incidence of cancer was generally limited to the respiratory tract, in particular the lung and thoracic cavity with some involvement of the abdomen. Renal cell is not considered one of these types of cancer, and the Veteran did not have mesothelioma or other specific type of asbestos-related cancer. He also opined that the gloves the Veteran would have used as a gunner would have been very durable so as to minimize any exposure to asbestos particles. With regard to herbicide agents, Dr. R.A. stated that the literature now supports a connection between bladder cancer and herbicide agents, but that the bladder has very unique cells distinct from the kidneys. If the cancer had spread from the kidneys to the bladder, there would have been an indication that transitional cell tissue was absent, which there was not in the case of the Veteran. The Board finds Dr. R.A.’s September 2017 expert medical opinion regarding the cause of the Veteran’s death to be persuasive as it is based on the record and medical literature, and addresses the appellant’s medical theories of causation. Further, he carefully explained the disease and medical mechanisms by which asbestos and tactical herbicides cause those disease. After doing so, Dr. R.A. reached the opinion that there was no relationship between renal cancer and service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the January 2017 VA examiner, whose opinion the Board also finds persuasive, reached the same conclusion. Thus, the Board finds that the Veteran’s cause of death is less likely than not related to service. While Dr. R.A. noted an absence of clinical care regarding the care by the civilian physician, in December 2016, the appellant indicated that she had given VA all pertinent medical record, and there is no indication of missing medical records. Thus, a remand is not necessary for this issue as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Further, the oncologist also stated that he did not have the articles to which the appellant’s representative cited in the informal hearing presentation; however, the Veteran has indicated a thorough review of the relevant medical literature, such that a fully informed and well-reasoned medical opinion was rendered. In a November 2016 statement, the appellant indicated that the Veteran had lung and throat cancer at that time as well, however, this was not listed as the cause of death. Rather, the cause of death was attributed most likely to renal malignancy and renal failure, which was noted on the death certificate and cited to in both VA medical opinions. While the appellant is competent to relate what doctors told her regarding her spouse’s condition, the Board does not find that there are any other causes of the Veteran’s death in light of the affirmative evidence contained in the file. The Board has considered the benefit-of-the-doubt rule. However, because the preponderance of the evidence is against the appellant’s claim of service connection for the Veteran’s cause of death, the benefit-of-the-doubt rule is not applicable, and thus, such compensation is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George