Citation Nr: 18101389
Decision Date: 05/04/18	Archive Date: 05/04/18

DOCKET NO. 14-38 118A
DATE:	May 4, 2018
ISSUES DECIDED:	1	ISSUES REMANDED:	0
ORDER
Entitlement to Dependency and Indemnity Compensation based on service connection for the cause of the Veteran’s death, to include exposure to herbicides,  Camp Lejeune water contamination, and asbestos, is denied.
FINDING OF FACT
The Veteran’s death was not related to service or a service-connected disability.
CONCLUSION OF LAW
The criteria for service connection for the cause of the Veteran’s death have not been met.  38 U.S.C. §§ 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1958 to March 1962; he died on July [REDACTED], 2012.  The Appellant is the surviving spouse of a Veteran; she seeks service connection for the cause of death of the Veteran.  The Appellant testified before the undersigned at a November 2017 travel Board hearing.  
The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Neither the Appellant nor the representative has raised issue with VA’s discharge of its duties to notify or assist since return of this case to the Board.  Consequently, the Board need not address such matters here.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the Veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument).on appeal.
Entitlement to service connection for the cause of the Veteran’s death.
I. Legal Criteria
Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability.  38 U.S.C. § 1310; 38 C.F.R. § 3.5.  To establish a service-connected cause of death, it must be shown that a service-connected disability either caused death or substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during active service, or one which was proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.312.
Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975, or service in other specific locations or periods.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).
A presumption of service connection arises for certain diseases if they manifest to a degree of 10 percent or more following exposure to contaminants present in the water supply at Camp Lejeune.  Service at Camp Lejeune means no less than 30 days of service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987, as established by military orders or other official service department records.  38 C.F.R. §§ 3.307(a)(7), 3.309(f) (2017).
In addition, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptomatology.  However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101.  With respect to the current appeal, this list includes malignant tumors.  See 38 C.F.R. § 3.309(a).
Regarding the Veteran's assertion that he has a respiratory disability that is related to in-service asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases (DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular)) that provides guidelines for considering compensation claims based on exposure to asbestos. The DVB Circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI (this has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C). See also VAOPGCPREC 4-00. 
The guidelines provide that the latency period for asbestos- related diseases varies from 10 to 45 years or more between first exposure and development of disease. It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and, notably for this case, mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c.

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, Part VI, did not create a presumption of exposure to asbestos for U.S. Navy Veterans who may have been exposed to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00.
The death of a veteran will be considered 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).
The 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).
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).
In rendering a decision on appeal, the Board must analyze the competency, credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
II. Analysis
The July 2012 Death Certificate shows that the Veteran’s primary cause of death was lung cancer.  It also list severe COPD [chronic obstructive pulmonary disease] and legionella pneumonia as “other significant conditions contributing to death but not resulting in underlying cause.”  The Veteran was not service-connected for any disabilities at the time of his death.  Thus, the question before the Board is whether the Veteran’s lung ailments that caused or contributed to death are service-connected.  
As a preliminary matter, the Board notes that the Veteran did not serve in the Republic of Vietnam or any other presumed herbicide agent exposure location during a requisite period to warrant consideration for presumptive service connection for respiratory cancer.  See March 1962 DD-214 submitted April 2015; 38 C.F.R. § 3.307(a)(6).  Additionally, Service treatment records are negative for any diagnosis or treatment of lung cancers, and the record as a whole lacks any indication that lung cancer manifested within the one-year presumptive period after service to warrant service connection as a chronic disease.
The Veteran served for more than 30 days within the borders of Marine Corps Base Camp Lejeune within the requisite period for presumed contaminant exposure.  Consequently, exposure to Camp Lejeune water contaminants is conceded.  However, lung cancer is not one of the listed diseases subject to presumed service connection due to such exposure.  38 C.F.R. § 3.307(a)(7), 3.309(f).  Nevertheless, lung cancer is included in a list of fourteen diseases categorized by National Academy of Sciences’ National Research Council (NRC) as possessing limited/suggestive evidence of an association to the contaminated Camp Lejeune water supply in a 2009 study entitled “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.” 
Regarding any potential etiology due to Camp Lejeune contaminated water exposure, VA obtained a November 2013 medical opinion from a member of the Camp Lejeune Contaminated Water Subject Matter Expert (SME) Committee.  The VA SME opined that the Veteran’s lung cancer was not likely due to or aggravated by exposure to contaminated water at Camp Lejeune.  After providing a thorough calculus of the Veteran’s estimated exposure to contaminated water while aboard Camp Lejeune, the SME opined that: “total maximal possible exposure [was] orders of magnitude lower than the TCE Cancer Effect Level (CEL) of 100 mg/kg/d given over 1 year in lab animals, and well within the safety margins built into the IRIS RFD lifetime dose.”  The VA SME additionally noted the Veteran’s history of smoking one pack of cigarettes per day for 55 years, and stated that the risk for lung cancers due to this level of smoking was, “substantially higher than any possible risk from exposure to CLCW solvents at the levels found.”  Lastly, the SME noted the Veteran’s family history that included three siblings with lung cancer to be a major risk factor.
The Appellant has also alleged that the Veteran’s lung cancer was caused by in-service asbestos exposure.  She testified that because he had been aboard the USS Boxer as part of his U.S. Marine Corp. service, that he was exposed to asbestos. The Board concedes that the Veteran’s service personnel records reveal embarkation records for service on various naval vessels.  Whether he was exposed to asbestos on these vessels is not known, but is possible. Nevertheless, the Board does not reject this service connection theory solely due to lack of documented in-service asbestos exposure; rather, it os lack of post-service evidence to support that the Veteran’s cause of death related to asbestos.
Private treatment records reflect a diagnostic entry of Stage IV lung cancer in May 2012.  See December 2012 Medical Treatment Record – Non-Government Facility.  An August 2012 private physician letter reflects:
At the time of his initial diagnosis, [the Veteran] had multiple lung masses with metastases to the lymph nodes of the chest and the bones of his spine.  Although biopsy specimens taken from one of the masses were suggestive of non-small cell lung cancer, I cannot rule out at this time that he also may have had a mesothelioma.  Regardless, the exposure to asbestos increased his risk of lung cancer and when combined with smoking may have proved ultimately to be fatal for him.
While the August 2012 private letter offers some indication the Veteran’s lung cancer may have related to asbestos exposure, if such exposure occurred, the letter is ultimately too speculative to establish a relation to service.  See Tirpak v. Derwinski, 2 Vet. App. 609, 611(1992).  Additionally, the August 2012 private letter does not indicate the writer had examined the Veteran’s claim file, to include pertinent military history as to any asbestos exposure.
VA obtained a November 2016 medical opinion wherein a VA examiner opined it less likely than not that the Veteran’s lung cancer related to any in-service asbestos exposure, if it occurred.  The examiner noted no objective evidence, in particular chest radiographs, confirming asbestos related lung disease.  The examiner noted biopsy results were more consistent with a non-small cell lung cancer unlike asbestosis and mesothelioma.  The examiner finally noted the Veteran’s lung cancer, as a non-small cell lung cancer, to be more consistent with tobacco use. Contrary to the August 2012 private letter, the November 2016 opinion provides a clear opinion with detailed rationale informed by review of the Veteran’s claims file, and is therefore more probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008)
In light of the record, the Board finds the evidence preponderates against a finding of service connection for the Veteran’s cause of death.  The Board must afford greater probative weight to November 2013 and November 2016 VA medical opinions that provided detailed and well-supported reasons against any connection between the Veteran’s lung cancer and service.  Remaining evidence of record additionally does not establish as at least as likely as not that the Veteran’s lung cancer was incurred in service.  Similarly, the record contains no indication that contributory causes of death of COPD and pneumonia were incurred in or as a result of service.  As such, the benefit-of-the-doubt doctrine is inapplicable and service connection for the Veteran’s cause of death must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs