Citation Nr: 19122016 Decision Date: 03/26/19 Archive Date: 03/23/19 DOCKET NO. 08-33 042 DATE: March 26, 2019 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s cause of death from colorectal cancer is related to his service or to a service-connected disorder. 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 March 1944 to August 1974, to include service in Japan and the Republic of Vietnam. He died in October 2007, and the appellant is his widow. The record indicates that the Veteran passed away in October 2007, and the death certificate lists the immediate cause of death as colon cancer. At the time of the Veteran’s death, the Veteran was service connected for bilateral hearing loss and tinnitus disabilities. The Veteran had also sought service connection for liver and colon cancers, which was denied by the RO in January of 2007. The appellant is the Veteran’s surviving widow. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. This matter was before the Board on two prior occasions. First, in July 2012, at which time it was remanded for additional development, and next, in November 2017, also remanded for same. Entitlement to service connection for cause of death The appellant seeks Dependency and Indemnity Compensation (DIC) benefits, based on her contention that the cause of the Veteran's death from colon cancer, is related to his exposure to either ionized radiation or herbicides during his active service. Such DIC benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran’s death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability is considered the “principal” cause of death when that 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. 38 C.F.R § 3.312(c). A contributory cause must be causally connected to the death and must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.” Id. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). If the claim involves a radiogenic disease listed under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), and the disease manifested during certain specified periods as defined under 38 C.F.R. § 3.311(b)(5), special development is warranted. Colon cancer is listed as a radiogenic disease, and the cancer manifested more than 5 years after service, satisfying 38 C.F.R. § 3.311(b)(5). The development provisions of 38 C.F.R. § 3.311 also apply to any other disease that may be induced by exposure to ionizing radiation. The Veteran’s exposure to radiation cannot be presumed under the circumstances as he did not serve in the occupation of Nagasaki or Hiroshima. See, 38 C.F.R. § 3.311(a)(2)(ii) and 3.309(d)(3)(vi), which more specifically defines the term “occupation of Hiroshima or Nagasaki, Japan, by United States forces” as official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as the occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. However, further development nonetheless fell under 38 C.F.R. § 3.311(a)(2)(iii) for other exposure claims. The case was therefore forwarded to the Under Secretary for Health for preparation of a dose estimate pursuant to that provision, and that estimate along with additional pertinent opinions are discussed below. If a Veteran is exposed to an herbicide agent during active service and one of the listed diseases manifests any time after service, the disability is presumed related to the exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Presumed exposure to an herbicide applies to a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations, if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. Several cancers, including leukemia, lymphoma, prostate cancer, certain respiratory cancers, and soft-tissue sarcoma, among others, may be presumed associated with herbicide exposure. Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. VA has determined that a positive association exists between exposure to herbicides and the subsequent development of the following conditions: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease, including coronary spasm, and coronary bypass surgery, and stable or unstable angina and Prinzmetal's angina); all chronic B-cell leukemias (including but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda (PCT); prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). PCT, chloracne, and early-onset peripheral neuropathy are required to become manifest to a compensable degree within one year from last exposure. Ionized Radiation Exposure In March 2018, the Under Secretary of Health responded to the Board’s November 2017 remand request, and unfortunately, the nexus element required to grant this claim is not satisfied. The Under Secretary of Health stated that it is not likely that the Veteran’s colon cancer can be attributed to ionized radiation exposure during his military service. He cites as his basis, the letter from the Defense Threat Reduction Agency (DTRA) dated January 5, 2017, which stated that historical records do not document the Veteran’s actual presence with the American occupational forces in Hiroshima or Nagasaki, Japan, and that in using the dose data for ionized radiation exposure provided by the DTRA, the probability of causation for colon cancer under these circumstances is 2.99 percent. See, March 2018 Radiation Review Memorandum. See, Advisory Opinion Letter – Radiation Exposure under 38 C.F.R. § 3.311. See, NIOSH-Interactive Radio Epidemiological Program Probability of Causation Results. Specifically, in April 2016, the RO contacted the Defense Threat Reduction Agency (DTRA) and requested verification of the Veteran’s participation in a radiation risk activity based on his assignment in the Pacific Theater and his military occupational specialty during his active duty service. In its January 2017 response, the DTRA gave a detailed report of the Veteran’s service record. It states that Veteran served on active duty in the United States Marine Corps from September 27, 1944 to August 31, 1974; that he was assigned to the “E” Company, 2nd Battalion, 28th Marines; that his unit embarked aboard the U.S.S. KINGSBURY (APA 177) at Hilo, Hawaii, on August 27, 1945, arrived at Sasebo, Japan (approximately 180 miles from Hiroshima and 30 miles from Nagasaki), on September 22, 1945, via Pearl Harbor, Hawaii, and Saipan, Mariana Islands, and disembarked there the same day. The DTRA also noted that the Veteran’s unit relocated to Fukuoka (approximately 120 miles from Hiroshima and 65 miles from Nagasaki) on October 5, 1945, and returned to Sasebo on November 2, 1945; that the Veteran transferred to Headquarters Company, 2nd Battalion, 8th Marines, at Kumamoto (approximately 150 miles from Hiroshima and 45 miles from Nagasaki) on November 30, 1945, and then to “B” Company, 1st Battalion, 8th Marines, at Kagoshima (approximately 220 miles from Hiroshima and 100 miles from Nagasaki) on December 30,1945. Finally, the DTRA indicated that the Veteran was later sick at an unspecified medical hospital from January 19, 1946, to January 31, 1946, and that he remained assigned to duty at Kagoshima until June 13, 1946, at which time he travelled to Sasebo and embarked aboard the U.S.S. GRIMES (APA 172) the following day. The DTRA further indicated that the ship departed Sasebo on June 15, 1946 and arrived at San Diego, California on June 29, 1946, departed the following day, and arrived at Norfolk, Virginia on July 13, 1946. Based on all of these findings, the Under Secretary denied the Veteran’s service connection claim for radiation exposure. Further, in a January 2019 requested advisory medical opinion to the VA, the physician came to the same conclusion, and explained his rationale as follows: “If the Veteran was 2,500 meters (1.5 miles) away from ground zero at the time of the blast, and survived, his excess risk for developing colon cancer would have been 10% above age-matched non-exposed individuals. His risk decreases linearly as his exposure decreases. At 4,000 meters (2.5 miles) his exposure dose of ionizing radiation would have been less than that of a chest X-ray. The Veteran was most likely more than 2.5 miles away from Nagasaki at the time of detonation. How much residual radiation he was exposed to in the 10 months he was stationed in Japan after the exposure is beyond my ability to calculate with the given data in the supplied records. According to the VA assessment, he had no exposure. Based upon the VA determination of no exposure, then the Veteran’s colon cancer and metastatic disease was less likely than not caused by or incurred from his exposure to the ionizing radiation while stationed in close proximity to Nagasaki, Japan.” Agent Orange Exposure The appellant’s alternate claim is that the Veteran’s cause of death can also be linked to his exposure to dioxin-based tactical chemical herbicides (referred to generally as Agent Orange), while stationed in Vietnam. The RO has conceded that the Veteran was exposed to Agent Orange while stationed Vietnam. See, January 2006 Rating Decision. Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. VA has determined that a positive association exists between exposure to herbicides and the subsequent development of the following conditions: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease, including coronary spasm, and coronary bypass surgery, and stable or unstable angina and Prinzmetal's angina); all chronic B-cell leukemias (including but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda (PCT); prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). PCT, chloracne, and early-onset peripheral neuropathy are required to become manifest to a compensable degree within one year from last exposure. As colon cancer is not identified by the VA as one of presumptive diseases related to Agent Orange exposure, presumption of service connection is not applicable in this case. However, the Board notes that the unavailability of presumptive service connection for some conditions based on exposure to Agent Orange, does not preclude direct service connection for other conditions based on exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Stefl v. Nicholson, 21 Vet. App. 120 (2007). 38 C.F.R. § 3.307 or § 3.309. A review of the Veteran's service personnel records shows that he received a Republic of Vietnam Campaign Medal with Device; a Republic of Vietnam Meritorious Unit Citation (Gallantry Cross Medal Color with Palm); and a Republic of Vietnam Meritorious Unit Citation (Civil Actions Medal, First Class Color with Palm). Because the prior May 2017 VA medical opinion did not address whether the Veteran's colon cancer resulted from any in-service herbicide exposure, the matter was remanded for a new medical opinion directly addressing this issue, which the January 2019 advisory opinion provided. The January 2019 opinion states that the Veteran’s colon cancer and metastatic disease was less likely than not incurred in or caused from his exposure to Agent Orange while stationed in Vietnam. Since there is no other competent medical opinion provided by appellant or evidence of record that contradicts this conclusion, as relates to the Veteran’s Agent Orange exposure, then the Board finds that the Veteran is not entitled to service connection based on Agent Orange exposure. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Camp Lejeune Contaminants The appellant further contends that the Veteran’s death could also be attributed to is his exposure to contaminants in the drinking water at Camp Lejeune, while the Veteran was stationed there. The record reflects that the Veteran was stationed at Camp Lejeune from March 29, 1968 through September 8, 1968 and from November 13, 1969 through March 28, 1973, a total of approximately 1556 days. As of March 14, 2017, the VA has acknowledged a relationship between exposure to contaminants in the water supply at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, and the subsequent development of the following conditions: kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. Service at Camp Lejeune for Veterans, Reservists, and former National Guard members must have been for at least 30 days (cumulative) during the specified time frame. A presumption of service connection based on exposure to contaminants in the water supply at Camp Lejeune is not warranted for any other condition, in this case, colon cancer. As colon cancer is not one of the presumptive conditions that the VA has acknowledged as related to the Veteran’s conceded exposure to contaminants in the water supply at Camp Lejeune, a VA advisory medical opinion was also requested to determine if there is a link between colon cancer and such exposure. In a May 2017 VA examination report, a VA physician opined that the evidence of record and available medical and scientific research does not demonstrate a link between the Veteran's colon cancer (with metastatic disease to the liver and lungs), and the Veteran’s exposure to the contaminants in the water supply at Camp Lejeune. Further, the VA examiner specifically noted that the Veteran had a significant family history of cancer, which resulted in the death of both of the Veteran’s parents; his father, from head and neck cancer, and his mother, from brain cancer. As to direct service connection, the January 2019 VA physician opined that the Veteran’s metastatic colon cancer with metastasis to the lungs, liver, and lymph nodes is less likely than not caused by or as a result of the veteran’s exposure to contaminated water at Camp Lejeune, and cites to supporting scientific studies and medical literature as the basis of his conclusion, as stated below: First, to specific studies by The Agency for Toxic Substance and Disease Registry (ATSDR) assessment of the epidemiological evidence derived from review of the occupational medicine literature of workers exposed to the same contaminants in the water at Camp Lejeune. One of the conclusions of this study was that the epidemiological evidence for an association between perchloroethylene (PCE) exposure and rectal cancer is weak and therefore there is below equipoise evidence for causation for PCE and rectal cancer. (Note: PCE is a chlorinated solvent.) The workers in the reviewed epidemiological evidence were exposed to occupational levels of trichloroethylene (TCE) and PCE. (Note: TCE is another chlorinated solvent). The Occupational Safety and Health Administration’s (OSHA) permissible exposure level (PEL) is the eight-hour time weighted average (TWA) level that workers can be continuously exposed in an eight-hour day for an entire career (usually considered to be 20 years). 20 years of work is 100,000 days. For TCE and PCE, the OSHA permissible exposure limit (PEL) is 100 ppm. PPM is an abbreviation for "parts per million" and it also can be expressed as milligrams per liter (mg/L). The January 2019 advisory opinion further notes that based on the measurements of contaminated levels in the water at Camp Lejeune, the highest levels of TCE contaminants measured at its worst level recorded a monthly average of 358 micrograms/liter, which is 0.358ppm. The highest levels of PCE measured in the worst of the contaminated water monthly averaged 75.7micrograms/liter, which is 0.075ppm. In his January 2019 advisory opinion, the physician also went on to explain, in simple related terms, how to better understand the basis of his negative nexus opinion. Specifically, he stated that a marine in training at Camp Lejeune consumed an estimated 6 liters of water per day for three days per week and 3 liters per day, the rest of the week. It was determined that under warm weather conditions, a Marine may consume between 1 and 2 quarts of water per hour and shower twice a day. The examiner noted that assuming the Veteran slept 8 hours per day and consumed water as if he was only in warm weather and only used water from the most contaminated system, he would have drunk 32 liters/day and used 130 liters/day for 2 showers. (According to the alliance for water efficiency, the average American shower uses 65.1 liters). His opinion further states that in 16 hours, the Veteran would have been exposed to 58 ppm of TCE and 7.3ppm of PCE, which a 29 ppm 8-hour TWA for TCE and 3.7 ppm 8-hour TWA for PCE. The physician specifically noted that these measurements were based on the most conservative recommendation of 50 ppm, from the American Conference of Governmental Industrial Hygienists (ACGIH), for an exposure limit to TCE and PCE. See, January 2019 Advisory Opinion. In addition, the physician also cites to epidemiological studies of workers which also did not find an association between colon cancer and the contaminants found in the water at Camp Lejeune. These workers were exposed to occupationally acceptable levels of these chemicals for their entire work career, that equates to about 20 years, compared to the Veteran who was exposed to significantly lower levels, for approximately 4.25 years. As a result, in this January 2019 advisory opinion, the physician concluded that the Veteran’s colon cancer with metastasis to the lungs, liver, and lymph nodes is less likely than not caused by or as a result of his exposure to contaminated water at Camp Lejeune. These VA medical opinions put forth are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). Given this fact, the Board finds the March 2018 Under Secretary of Health memorandum, and the January 2019 advisory opinion to be highly probative evidence against the appellant’s claim. They are competent and credible and provide an adequate rationale with regards to the Veteran’s cause of death and its lack of connection to service, to include conceded exposure to contaminates in the water supply at Camp Lejeune, Agent Orange exposure, and any ionizing radiation exposure. July 2013 Private Medical Opinion The Board has also taken into consideration the July 2013 private medical opinion by Dr. N. F., submitted by the appellant. He stated that the Veteran had past exposure to radiation which had a bearing on the Veteran’s death, because the Veteran was stationed within twenty miles from a bombing site while he was stationed in Japan. Dr. N. F. cites information provided by the appellant as his sole basis for his premise of the Veteran’s level of ionized radiation exposure. This is problematic because the evidence of record irrefutably shows that the Veteran’s closest exposure to the bombing cite was when his unit disembarked in Sasebo, Japan, for one day, on August 27, 1945. The record reflects that Sasebo, Japan is approximately 180 miles from Hiroshima and 30 miles from Nagasaki. The Veteran’s other unit locations were even further way - Fukuoka (approximately 120 miles from Hiroshima and 65 miles from Nagasaki), Kumamoto (approximately 150 miles from Hiroshima and 45 miles from Nagasaki) and Kagoshima (approximately 220 miles from Hiroshima and 100 miles from Nagasaki). Given that the evidence of record shows that the Veteran’s maximum distance of possible ionized radiation exposure is 30 miles, not 20 miles, then Dr. N. F.’s premise of the Veteran’s exposure to ionizing radiation at 20 miles is clearly inaccurate, and as such, his opinion has little or any probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Further, Dr. N. F. did not provide or cite to any specific medical literature or scientist research or study to refute DTRA’s report that the Veteran’s dose data for ionized radiation exposure resulted a probability of causation for colon cancer under the Veteran’s circumstances of 2.99 percent, which was just slightly higher than some of the probabilities noted in the January 2019 advisory opinion based on various demographic studies of the general population. As to Dr. N. F’s statement that the contaminants at Camp Lejeune also had some bearing on the Veteran subsequently developing colon cancer, here again, Dr. N. F. has failed to provide any supporting data or reports to show a direct link between such exposure and colon cancer, so as to refute the scientific evidence of record. Consequently, the Board gives Dr. N. F’s opinion low probative weight, compared to the other previously mentioned medical opinions of record, which the Board finds highly probative. Conclusion In light of all of the above, the Board must unfortunately conclude that the preponderance of the evidence is against a finding of a nexus between the Veteran’s military service and the cause of the Veteran’s death, and that consequently, the appellant’s claim must be denied. As pointed out previously, the report in favor of the claim is at least in part based on an incorrect assumption regarding the Veteran’s closest location to either Hiroshima and Nagasaki, and is otherwise lacking in identifying articles and studies that support the conclusions reached by that examiner. On the other hand, as was also pointed out above, the reports against the claim are based on correct assumptions concerning the Veteran’s closest contact with either Hiroshima and Nagasaki, and the January 2019 report is particularly comprehensive in its review of applicable articles and studies that pertain to each of appellant’s theories of why she should receive the benefits sought. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel