Citation Nr: 18150746 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-40 669 DATE: November 15, 2018 ORDER Entitlement to service connection for multiple myeloma, for purposes of substitution, is granted. Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in April 2014; the immediate cause of death was multisystem organ failure and the underlying causes of death were intraperitoneal bleeding and multiple myeloma. 2. The evidence is in equipoise as to whether the Veteran’s multiple myeloma was due to his exposure to ionizing radiation during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for multiple myeloma, for substitution purposes, have been met. 38 U.S.C. §§ 1131, 5107 (2014); 38 C.F.R. § 3.303 (2018). 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5107 (2014); 38 C.F.R. § 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1983 to April 1988. He died in April 2014; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Jackson, Mississippi, which denied service connection for multiple myeloma for purposes of accrued benefits and service connection for the cause of the Veteran’s death. The appellant testified before the undersigned at a Board videoconference hearing in September 2017. A transcript of the hearing is of record. With respect to the issue of entitlement to service connection for multiple myeloma, the RO adjudicated the claim for purposes of accrued benefits only. An accrued-benefits claimant, however, has two options: request substitution or pursue a claim for accrued benefits. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010). The distinction between the two types of adjudication is significant in that, unlike an accrued benefits claim, the record in a substitution claim is not closed on the date of death of the original claimant but remains open for submission and development of any pertinent additional evidence. 38 U.S.C. § 5121A. Here, the RO failed to make any substitution determination or inform the appellant of her right to pursue the claim as either a substitute claimant or as a claimant for accrued benefits. In Reliford v. McDonald, 27 Vet. App. 297, 304 (2015), the United States Court of Appeals for Veterans Claims (Court) explained that it is an appellant’s right to choose whether she wishes to waive substitution when she files a claim for accrued benefits (i.e. VA Form 21-534). As set forth below, the Board’s review of the record indicates that a favorable determination is warranted on the claim of service connection for multiple myeloma, based on medical opinion evidence received after the Veteran’s death. The evidence of record at the time of his death did not contain evidence linking his multiple myeloma to service. Thus, adjudication of the claim on a substitution basis is clearly more favorable to the appellant and the Board has therefore recharacterized the issue accordingly. In light of the favorable decision below, no prejudice to the appellant has resulted from the Board’s recharacterization and consideration of the substitution the issue. 1. Entitlement to service connection for multiple myeloma 2. Entitlement to service connection for the cause of the Veteran’s death Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, specific to “radiation-exposed veterans,” there are certain types of cancer that are presumptively service connected, including multiple myeloma. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d)(2). In this case, however, the record shows that the Veteran was not a “radiation-exposed veteran” as defined in the applicable regulation because he did not participate in specifically delineated “radiation-risk activities” such as onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii). Thus, this provision does not avail the appellant. Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a “radiogenic disease.” The term “radiogenic disease” means a disease that may be induced by ionizing radiation and includes multiple myeloma. 38 C.F.R. § 3.311(b)(2). In this case, in accordance with section 3.311, the RO obtained a June 2014 dose assessment from the Naval Dosimetry Center which estimated that the Veteran had been exposed to 00.036 rem of DDE-Photon and 00.007 rem of DDE-Neutron during active duty. The RO thereafter obtained a July 2014 opinion from VA’s Director, Post-9/11 Era, Environmental Health Program who explained that because the Veteran’s radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it was unlikely that his cancer was attributable to radiation exposure while in miliary service. In a July 2014 VA advisory medical opinion, the Director of VA’s Compensation Services opined that in light of the medical opinion from the Under Secretary (Director, Post-9/11 Era, Environmental Health Program), there is no reasonable possibility that the Veteran’s cancer resulted from radiation exposure in service. Because the development conducted pursuant to section 3.311 was unfavorable, it does not provide a basis upon which to grant the claim. Finally, the third way to establish service connection for a disability claimed to be due to exposure to ionizing radiation during active duty is by providing evidence of direct causation. In that regard, the law provides that service connection may be granted when it is established that a disease diagnosed after discharge from service was otherwise incurred during active service, including as a result of exposure to ionizing radiation. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As described above, the record on appeal contains evidence from the U.S. Navy confirming the Veteran’s in-service exposure to ionizing radiation. The post-service record on appeal shows that the Veteran was diagnosed as having multiple myeloma in April 2013, approximately 25 years after service separation. He died in April 2014. His death certificate lists the immediate cause of death as multisystem organ failure and the underlying causes of death as intraperitoneal bleeding and multiple myeloma. As reflected above, in July 2014, the RO obtained a medical opinion to the effect that in light of the Veteran’s in-service dose of ionizing radiation, it was unlikely that his post-service cancer could be attributed to radiation exposure while in miliary service. In a private medical opinion from the Veteran’s treating physician received in September 2015, however, the physician noted that the Veteran presented for medical attention with a diagnosis of smoldering multiple myeloma in April 2013. He was found to have high risk disease and soon progressed to symptomatic multiple myeloma. He noted that during the Veteran’s initial assessment he endorsed the history of being exposed to radiation while in the Navy. The Veteran’s treating physician opined that this exposure was, more likely than not, the cause of the disease since as a nonsmoking white male in his forties, he had no other easily discernable risk factors for the development of the disease. In an additional medical opinion from the Veteran’s treating physician received in October 2017, he noted that myeloma is common among elderly African-American males; however, the Veteran did not fit those two criteria. The physician further explained that while it is impossible to determine exactly what led to the development of myeloma in the Veteran’s case, the potential does exist for him to have developed myeloma due to his in-service exposure to ionizing radiation. After carefully reviewing the available evidence, the Board finds that service connection for multiple myeloma is warranted. As set forth above, the record contains conflicting medical opinions. The VA Directors concluded that it is less likely as not that the Veteran’s multiple myeloma was caused by radiation exposure during military service. Conversely, in private medical opinions submitted by the Veteran, his treating physician concluded that the Veteran’s multiple myeloma was caused by radiation exposure during military service. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide “important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence.” Nieves-Rodriguez, 22 Vet. App. at 302. These factors are (1) the opinion is based upon sufficient facts or data. In other words, is the medical professional informed of sufficient facts upon which to base an opinion relevant to the problem at hand; (2) the opinion is the product of reliable principles and methods; and (3) the expert has applied the principles and methods reliably to the facts of the case. In other words, most of the probative value of a medical opinion comes from its reasoning. The Board has carefully considered the medical opinions discussed above in light of these factors. In this regard, the Board notes that the opinions discussed above were all rendered by physicians, and as such, they are all individuals with the clear expertise necessary to opine on the matter at issue in this case. In addition, the physicians who provided the opinions all based them on a review of the Veteran’s medical history. Finally, the physicians provided a rationale for their conclusions. As noted above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in her favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made in this case. The evidence is in equipoise as to whether the Veteran’s multiple myeloma is due to radiation exposure during military service. Under these circumstances, service connection for multiple myeloma is warranted. To establish service connection for the cause of a Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 (2014); 38 C.F.R. § 3.312 (2017).   In this case, the Veteran’s death certificate establishes that multiple myeloma was an underlying cause of the Veteran’s death. In light of the Board’s decision above to award service connection for multiple myeloma, service connection for the cause of the Veteran’s death is now warranted. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel