Citation Nr: 18148193 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-65 358 DATE: November 7, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT Lung cancer, which contributed to the Veteran’s death, is presumed to have been incurred in service. CONCLUSION OF LAW A disability incurred in service contributed to death. 38 U.S.C. §§ 1310, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to October 1954. He died in December 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board granted a petition to reopen the claim on appeal, and remanded the claim for additional development. The case is again before the Board for appellate review. Entitlement to service connection for the cause of the Veteran’s death is granted. The Veteran died in December 2014. The death certificate of record notes the cause of death as cardiac arrest due to lung cancer. The appellant contends that the lung cancer was service connected. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2018). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (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). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For the following reasons, a grant of the benefits sought on appeal is warranted. First, it must be presumed that the Veteran incurred lung cancer during service. The medical evidence establishes that he was diagnosed with lung cancer prior to death. And the evidence establishes that he was a “radiation-exposed veteran” who participated in a “radiation-risk activity” during service. Specifically, he participated onsite “in a test involving the atmospheric detonation of a nuclear device” during Operation IVY in the Pacific Ocean in December 1952. See 38 U.S.C. § 1112 (2012); 38 C.F.R. § 3.309(d) (2018). Second, the lung cancer “contributed substantially or materially to death, … combined to cause death, or … aided or lent assistance to the production of death.” See 38 C.F.R. § 3.312(c). The death certificate notes the cause of death as cardiac arrest due to lung cancer. Third, there is no evidence of record rebutting the presumption of service connection under 38 U.S.C. § 1112 and 38 C.F.R. § 3.309(d). See 38 C.F.R. § 3.307(d) (2018). (Continued on the next page)   (Continued on the next page) BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel