Citation Nr: 18158330 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-18 765 DATE: December 14, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The evidence shows that the Veteran’s terminal lung cancer did not first manifest during his service or in the first year after his separation from active duty, and the most probative evidence indicates the fatal lung cancer noted on his death certificate that ultimately led to his death were not related or attributable to his military service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1972 to September 1976. He died in June 2006. The Appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant requested a hearing before the Board on her May 2015 Form 9, and was scheduled to testify in a videoconference hearing in July 2018. In early June 2018, the Appellant’s representative called the RO and indicated the appellant would not be attending the hearing. A week later, the RO received a handwritten letter from the Appellant stating she wished to withdraw her request for a hearing before the Board, and a formal withdrawal form was received in early July 2018. Accordingly, the request for a hearing is withdrawn, and the Board may proceed to adjudication of the claim on the merits. 1. Entitlement to service connection for the cause of the Veteran's death The Appellant contends that exposure to contaminants at Camp Lejeune materially contributed to the Veteran’s death due to lung cancer. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The Veteran was not service-connected for his metastatic lung cancer at the time of his death. Accordingly, it is necessary to determine whether service connection is appropriate, or whether one of the Veteran’s service-connected disabilities materially contributed to his death. As further explained below, the Board finds that service connection for the Veteran’s lung cancer is not warranted, and that the Veteran’s service-connected disabilities, specifically his asymptomatic right-side lung puncture/pneumothorax, did not materially contribute to his death. Entitlement to Service Connection for the Veteran’s Lung Cancer In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Malignant (i.e., cancerous) tumors are chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). However, there is no evidence in the STRs that the Veteran had any manifestations of left lung cancer during or immediately after service, including within the one-year presumptive period following the conclusion of his service. Indeed, as previously noted, the record indicates he did not have a lung cancer diagnosis until 2004, over 25 years later. Thus, based on the foregoing, there is no basis for concluding this condition presumptively incurred in service as a chronic disease. See 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 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, the diseases of 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). The diseases listed in §3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). The Veteran’s personnel records establish that he was assigned to Camp Lejeune from approximately 1974 to 1976. Thus, he is presumed to have been exposed to contaminated water at Camp Lejeune because he served at the base for more than 30 days. However, the Veteran’s death certificate, dated June 2006, shows the Veteran’s cause of death to be “metastatic lung cancer.” Because lung cancer is not one of the eight listed conditions in § 3.309(f), shown above, presumptive service connection cannot be granted for lung cancer in this case. The Appellant may still present evidence to establish that an in-service event, such as exposure to contaminants at Camp Lejeune, caused or aggravated the Veteran’s lung cancer. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Two VA medical opinions are of record that addressed whether the Veteran’s lung cancer was causally related to his presumed exposure to contaminated water at Camp Lejeune while in service. At the time of the first opinion, in September 2014, the clinician did not have access to the Veteran’s post-service medical records related to his lung cancer diagnosis and treatment, with the exception of the Veteran’s death certificate. The physician stated: “Under the circumstances it is impossible to attribute the veteran’s probable metastatic lung cancer to a relatively low-level risk such as exposure to contaminants at Camp Lejeune some 3 decades previously” and that “[i]nsufficient information is given on which to base a risk analysis.” The second medical opinion was prepared in December 2014, by the same clinician. At that time, the clinician showed a thorough understanding of the Veteran’s in-service and post-service medical history. The clinician noted the Veteran “smoked 1 [pack of cigarettes per day] since age 16 (1969) but stopped briefly after his diagnosis in [January 2004], but then restarted and was currently smoking per [a record in February 2006].” The physician also noted that, in February 2006, the Veteran acknowledged occupational exposure to printing chemicals at his job. The December 2014 clinician’s rationale for concluding that the Veteran’s lung cancer was not etiologically related to exposure to contaminants at Camp Lejeune was based on the known risk factors for lung cancer, which were all listed, and the Veteran’s known risk factors that overlapped. The clinician concluded: “Both how much and how long a patient smokes increases the chances of lung cancer. The veteran had a long history of smoking and was a current smoker at the time of his diagnosis.” None of the medical records associated with the Veteran’s diagnosis or treatment for lung cancer discuss or reference his time at Camp Lejeune. Accordingly, the two VA examinations above are the only medical evidence of record that are specific to the Veteran. The Appellant submitted a copy of a medical study with her February 2015 Notice of Disagreement. The study, entitled “Mortality study of civilian employees exposed to contaminated drinking water at USMC Base Camp Lejeune: A retrospective cohort study,” looked specifically at whether exposure to contaminants at Camp Lejeune resulted in an increased mortality risk – i.e. created an increased risk of dying from certain conditions – but did not address whether there was any increase in being diagnosed with the conditions. The study did include findings that exposure to contaminants increased mortality risk for those with lung cancer, among other conditions, and that “smoking would have only a minor impact on any association between cause of death and exposure to the drinking water contaminants at Camp LeJeune.” It is conceded that the Veteran had a current disability (lung cancer) and presumed in-service exposure to contaminants in the water at Camp Lejeune. Thus, as explained above, the legal question before the Board is whether the evidence shows there is a causal relationship between the in-service exposure and the later-developed lung cancer. Unfortunately, the study submitted by the Appellant does not show or suggest such a causal relationship. Rather than discussing whether exposure to contaminants at Camp Lejeune increases risk of developing lung cancer, the study finds that the risk of death is increased in those who have already developed lung cancer. Accordingly, though the Board is sympathetic to the pain and frustration the study’s findings may cause the Appellant, they do not establish the evidence necessary for the legal standard under which service connection for disability benefits is granted. Based on the above, the Board finds that the evidence does not establish entitlement to service connection for the Veteran’s lung cancer. Further, the Board finds that it is not necessary to remand for another medical opinion addressing the study provided by the Appellant because the study does not address a contention that can be granted by law. Camp Lejeune Contaminants as Contributory Cause of Death The Board recognizes that the language for § 3.312(c), which discusses contributory cause of death, seems to be invoked by the findings from the study discussed above. Certainly, in finding that there is an increased risk of death after exposure to contaminants at Camp Lejeune, it would at least seem necessary to have an examiner opine whether the study showed that contaminants may have contributed “substantially or materially” to the Veteran’s death. However, the Board is again bound by language of 38 U.S.C. § 1310 and 38 C.F.R. § 3.312(c) in this regard, and each requires that a “service-connected disability” serves as a contributory cause of death in order for service connection for cause of death to be granted. Exposure to contaminants is not, in itself, a service-connected disability. Rather, it is a presumed in-service event for purposes of establishing service connection. Thus, unfortunately, the language of the regulations does not permit the presumed exposure to act as a basis for service connection for cause of death under § 3.312(c). There is, therefore, no reason to obtain a further medical opinion because there is no legal basis to grant under this theory of entitlement. Service-Connected Pneumothorax Finally, the Board acknowledges that the Veteran was service-connected for an asymptomatic pneumothorax, remote with rib fracture, at the time of his death. The disability arose from a car-and-train accident that occurred in-service, and which resulted in, among other injuries, a punctured right lung causing pneumothorax. See, e.g. Hospital Summary dated July 1974. When the Veteran was examined for service connection purposes in September 1980, the condition no longer bothered him and imaging was clear. He was service connected at 0 percent disabled, and it was labeled as asymptomatic. Further, there was no reference to the condition becoming symptomatic in the Veteran’s lengthy lung cancer treatment records between 2004 and 2006. A July 2014 C&P medical opinion found that it was less likely than not that the Veteran’s service-connected pneumothorax was causally related to the Veteran’s left-side lung cancer. The examiner’s rationale was: “The American Cancer Society does not list pneumothorax or any form of chest trauma as a cause or risk factor for lung cancer.” Additionally, though the above referenced December 2014 clinician did not give an explicit opinion regarding the connection between the two conditions, the clinician did emphasize that the Veteran’s lung puncture/pneumothorax occurred in the right lung, and the Veteran’s lung cancer developed in the left lung. The Appellant has not presented any evidence contending the conditions are related, or that the asymptomatic pneumothorax somehow contributed to the Veteran’s cause of death. Based on all of the foregoing, the Board finds that service connection for cause of death has not been established under a direct or contributory theory of entitlement. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel