Citation Nr: 18161130 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 13-14 187 DATE: December 28, 2018 ORDER Entitlement to service connection for the Veteran’s cause of death is denied. FINDINGS OF FACT 1. The Veteran passed away in July 2011, and his death certificate lists his causes of death as fulminant hepatic failure, heart failure, and acute renal failure. The death certificate also lists as other significant conditions contributing to death, but not resulting in the underlying causes, acute liver failure and chronic lymphocytic leukemia. 2. At the time of the Veteran’s death, service connection was not in effect for any disabilities. 4. The competent and probative evidence of record reflects that the Veteran’s cause of death is unrelated to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 1312 (2012); 38 C.F.R. §§ 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from May 1953 to May 1955. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2012 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. The case is under the jurisdiction of the VA Regional Office (RO) in Jackson, Mississippi. The Veteran passed away in July 2011. The Appellant is the Veteran’s surviving spouse. In March 2016, the Appellant testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. I. VA’s Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017). As for the duty to notify, a VCAA letter was sent to the Appellant in December 2011. As for the duty to assist, the Veteran’s service treatment records and VA medical treatment records have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Appellant has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with her file. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in June 2016. The purpose of this remand was to attempt to obtain additional treatment records and for further development. Upon remand, these actions were taken. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). III. Other Due Process Considerations As noted in the Introduction, the Appellant was afforded a hearing before the undersigned VLJ in March 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Appellant specific questions concerning the symptoms of and treatment for her late husband’s medical conditions and subsequent death. The hearing focused on the elements necessary to substantiate the claim, and the Appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate the claim. In addition, the Appellant was assisted at the hearing by an accredited representative from the Mississippi State Veterans Affairs Board. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Appellant or her representative. Neither the representative nor the Appellant has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). IV. Analysis The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Appellant asserts that the Veteran’s cause of death is related to his active military service and specifically his exposure to ionizing radiation. The Veteran’s death certificate is of record and lists as the immediate causes of death, fulminant hepatic failure, heart failure, and acute renal failure. The death certificate also lists as other significant conditions contributing to death, but not resulting in the underlying causes, acute liver failure and chronic lymphocytic leukemia. The Appellant contends that the Veteran’s causes of death were the result of in-service exposure to ionizing radiation during the Veteran’s participation in Operation CASTLE. The Board notes that January and February 2011 letters from the Defense Threat Reduction Agency confirm the Veteran’s participation in Operation CASTLE, conducted in 1954. When a Veteran dies of a service connected disability, the Veteran’s surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5 (a), 3.312. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The death of a Veteran will be considered as having been due to a service connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singularly 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 one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). 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. Id. Additionally, to determine whether the Veteran’s radiation exposure in-service caused his death, it must be determined whether he died from a presumptive disease under 38 C.F.R. § 3.309 (d), a disease listed under 38 C.F.R. § 3.311, or whether his cause of death can otherwise be directly service connected to his radiation exposure. First, certain cancers may be presumptively service connected if they become manifest within a radiation-exposed veteran, however, none of the Veteran’s causes of death are on this list. See 38 C.F.R. § 3.309 (d)(2). Therefore, presumptive service connection is not warranted. Next, the second method for establishing service connection based on in-service radiation exposure, under 38 C.F.R. § 3.311, provides for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their cancer may have been induced by radiation. The provision provides that the listed “radiogenic” diseases found five years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Under Secretary of Benefits determines that that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. However, none of the Veteran’s causes of death are on the list of radiogenic diseases. Therefore, service connection is not warranted under 38 C.F.R. § 3.311. Furthermore, an April 2011 memorandum from the Director of the Environmental Agents Service summarizes the Veteran’s total external gamma and internal doses that resulted from the Veteran’s participation in Operation CASTLE. The memorandum opines that it is unlikely that the Veteran’s B-cell chronic lymphocytic leukemia can be attributed to ionizing radiation exposure while he was in the military. Additionally, the Board has considered the Appellant’s statements attributing the Veteran’s cause of death to exposure to ionizing radiation in service; however, the Appellant does not have the requisite medical training, expertise, or credentials to render a competent opinion as to medical causation. See 38 C.F.R. § 3.159; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board has considered the Veteran’s private and VA treatment records. However, these records do not contain an opinion relating the Veteran’s cause of death to his military service and/or exposure to ionizing radiation. Although the Veteran was exposed to ionizing radiation during his military service, a negative opinion has already been obtained regarding whether the Veteran’s lymphocytic leukemia is related to his in-service ionizing radiation. Additionally, the other disorders listed on the Veteran’s death certificate such as liver failure, heart failure, and renal failure are not considered by VA to be radiogenic disorders under 38 CFR 3.311. In addition, there is no medical opinion linking any of these disorders to the Veteran’s military service. Therefore, the Board finds that entitlement to service connection for the Veteran’s cause of death is not warranted. The Board is sympathetic to the Appellant’s loss; however, the preponderance of the evidence is against the claim for entitlement to service connection for the cause of the Veteran’s death, and her claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel