Citation Nr: 18150046 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-37 138 DATE: November 14, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in May 2004, and his death certificate lists the immediate cause of death as myocardial infarction due to chronic obstructive pulmonary disease due to smoking; small cell lung cancer was listed as a significant condition contributing to death but not resulting in the underlying cause. 2. At the time of his death the Veteran was service-connected for a right shoulder ligament sprain and status post pilonidal cystectomy; the preponderance of the evidence is against finding that either of these disorders caused or contributed substantially or materially to his death. 3. The Veteran was not service-connected for a cardiovascular disorder, chronic obstructive pulmonary disease, or lung cancer. These disorders were not incurred during service or manifested to a compensable degree within one year following discharge from active duty, and the preponderance of the probative evidence is against finding that they are otherwise related to active service or events therein, to include due to exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW A disability incurred in service, a disability that may be presumed to have been incurred during service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1945 to August 1949, August 1950 to August 1962, and January 1964 to February 1965. The Veteran passed away in May 2004. The appellant is his surviving spouse. Entitlement to service connection for the cause of the Veteran’s death In October 2014, VA denied entitlement to service connection for the cause of the Veteran’s death. The appellant disagreed with the decision and perfected this appeal. Dependency and indemnity compensation is payable to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C. § 1310. 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 (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; 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). The Veteran’s death certificate lists the immediate cause of death as a myocardial infarction due to chronic obstructive pulmonary disease due to smoking. A significant condition contributing to death but not resulting in the underlying cause was small cell cancer of the lungs. At the time of his death, the Veteran was service-connected for right shoulder ligament sprain; and residuals of a pilonidal cystectomy. Each disorder was evaluated as noncompensable. There is no evidence that the service-connected disorders caused or contributed in any way to his death. The Veteran was not service-connected for myocardial infarction, chronic obstructive pulmonary disease, or lung cancer. Thus, the Board will consider whether he should have been. A service-connected disorder is one which was incurred or aggravated by active service, or in the case of certain diseases, like cardiovascular disease and malignant tumors, was demonstrated to a compensable degree within one year following separation from active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). In a July 2013 statement, the appellant argued that between 1953 and 1962, the Veteran was twice assigned to jobs at Camp Lejeune, and that his lung cancer may have been caused by exposure to contaminated water at that facility. She submitted an informational bulletin titled “Camp Lejeune Water Contamination (Historical)” which indicates that under the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (P.L. 112-154), VA is required to provide health care for numerous illnesses and conditions, including lung cancer. Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served on Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). Service personnel records confirm that the Veteran served at Camp Lejeune during the specified period. Notably, neither myocardial infarction nor chronic obstructive pulmonary disease are included on the above presumptive disease list. Hence, presumptive service connection based on exposure to contaminated water is not warranted. 38 C.F.R. §§ 3.307, 3.309(f). While lung cancer is a qualifying health condition for purposes of health care, lung cancer is not listed as a disease associated with exposure to contaminants in the water supply and presumptive service connection is not warranted. Notwithstanding, service connection may still be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Review of available service treatment records is negative for any evidence of a cardiovascular disorder, chronic obstructive pulmonary disease, or lung cancer. At a separation examination from the Veteran’s last period of service in February 1965, his heart, lungs, and chest were normal on clinical evaluation and chest x-ray was negative. Neither a cardiovascular disorder nor lung cancer were disabling to a compensable degree within one year following discharge from active duty. Post-service records show the Veteran was diagnosed with small cell lung cancer and treated with chemotherapy and radiation in 1991. Considering the appellant’s contentions concerning the Veteran’s contaminated water exposure and lung cancer, VA obtained a medical opinion. In October 2014, a subject matter expert on the Camp Lejeune Contaminated Water Project reviewed the claims folder and discussed relevant evidence and scientific literature. The physician stated that the Veteran’s risk factors for lung cancer were his adult age, male gender, and smoking history. The overwhelming factor was his significant smoking history. The examiner discussed multiple studies addressing lung cancer and its relationship to smoking and/or occupational exposures. In summary, the examiner provided a negative opinion, noting that a possible carcinogenic association could be speculated for “unusually high dose” exposure to these chemicals but this would not apply to this Veteran because he did not have the many years of exposure that may possibly be associated with any adverse outcome. Given the Veteran’s relatively short time at Camp Lejeune, his exposure was not significant for cancer effects. The examiner opined that the Veteran’s overwhelming exposure for lung cancer was unquestionably his substantial smoking history. The October 2014 opinion was provided by a subject matter expert following a review of the record and a review of extensive scientific literature. The opinion is considered highly probative and the record does not contain any probative evidence to the contrary. Again, the Board acknowledges the appellant’s arguments, but the Board finds that her unsubstantiated lay assertions are not probative as to nexus. In her July 2013 statement, the appellant argued that the Veteran had untreated posttraumatic stress disorder related to his combat service. The Board acknowledges that the Veteran served in Korea and was twice wounded in action. On review, however, there is no need to further address whether service connection should have been granted for posttraumatic stress disorder as the record does not contain competent evidence showing that posttraumatic stress disorder caused or contributed substantially or materially to the Veteran’s death, or that posttraumatic stress disorder caused or aggravated heart disease and in turn caused the Veteran’s fatal myocardial infarction. In her October 2015 notice of disagreement, the appellant argued that the evaluators focused mainly on the contaminated water exposure issue and then concluded smoking caused the lung cancer, but did not discuss the stress of combat service, being wounded in service, or having combat-related posttraumatic stress disorder as a possible reason for the Veteran’s smoking addiction. The law precludes, however, for claims filed after June 9, 1998, granting service connection for a disability first manifested after service (or after an applicable presumptive period) on the basis that it resulted from disease or injury attributable to the use of tobacco products by a veteran during service. 38 U.S.C. § 1103. Further, the Board finds that the record contains no competent evidence indicating the Veteran had a smoking addiction related to any service-connected disability. The Board acknowledges the appellant’s argument that the Veteran was disabled and unable to work, but under the facts of this case, there is no basis for awarding Dependency and Indemnity Compensation under 38 U.S.C. § 1318. The Board sympathizes with the appellant and acknowledges her sincere belief that benefits are warranted. The Board acknowledges the Veteran’s long and honorable service to our country to include his valor in combat during the Korean war. The preponderance of the evidence, however, is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel