Citation Nr: 20005484 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-43 957 DATE: January 23, 2020 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in December 2009, and his death certificate lists the immediate cause of death as multiple myeloma. 2. At the time of the Veteran’s death, his service-connected disabilities included hypertension, hiatal hernia, and low back syndrome. 3. Multiple myeloma was not present during the Veteran’s military service and the preponderance of evidence is against a finding that his cause of death was related to his service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1953 to October 1977. He died in December 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board remanded the appeal for additional development. Service connection for the cause of the Veteran’s death. Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In addition, a veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to an herbicide agent, including Agent Orange. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including multiple myeloma (e.g., cancer of the lung), are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). VA recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. VA has determined that exposure to herbicide agent will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases, including U-Tapao, during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. The appellant contends that the Veteran’s fatal multiple myeloma was due to his military service, to include as due to exposure to non-ionizing radiation from radar systems. In a September 2019 statement, the Veteran’s daughter suggested that the Veteran’s multiple myeloma was due to an in-service chemical exposure, as he may have served in the Republic of Vietnam. For the following reasons, the Board finds that service connection for the cause of the Veteran’s death is not warranted. At the time of the Veteran’s death, his service-connected disabilities included hypertension, hiatal hernia, and low back syndrome. There was no pending claim or appeal at the time of his death. The Veteran died in December 2009. His death certificate lists the immediate cause of his death as multiple myeloma. The Veteran’s service records do not show that he served in the Republic of Vietnam; but rather, that he served in U-Tapao Airfield, Thailand from August 1973 to August 1974. His military occupational specialty (MOS) was in avionic weapon system maintenance. His service records indicate that his military duties included managing and evaluating bomb navigation instruments and photo system shops. See, e.g., The Meritorious Service Medal. In this case, the evidence does not show, nor does the appellant contend that the Veteran served on or near the perimeter in U-Tapao Airfield, Thailand during the Vietnam era. Therefore, the Veteran was not presumed to have been exposed to an herbicide agent during service. The Veteran’s service treatment records do not show complaints, diagnosis, or treatment for multiple myeloma. Post-service records reveal that in November 1977, the Veteran was afforded a VA examination. The examination report shows that there were no complaints, diagnosis, or treatment of multiple myeloma. As to the appellant’s assertion that the Veteran was exposed to non-ionizing radiation from radar systems, the United States Court of Appeals for Veterans Claims (Court/CAVC) has taken judicial notice that radar equipment emits micro-wave type, non-ionizing radiation. See Rucker v. Brown,10 Vet. App. 67, 69, 71-72 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). Non-ionizing exposure is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309, 3.311. In an August 2019 opinion, a VA physician indicated that he reviewed the Veteran’s claims file and opined that it is less likely than not that the Veteran’s multiple myeloma was caused by or a result of non-ionizing radiation from radar systems. The VA physician reasoned that multiple myeloma is not caused by non-ionizing radiation. In support of his opinion, the VA physician cited to medical literature that showed that multiple myeloma was not associated with non-ionizing radiation. The August 2019 opinion is highly probative value as it was based on a review of the claims file and it was supported with medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Additionally, the evidence does not show, nor does the appellant contend, that the Veteran’s service-connected hypertension, hiatal hernia, and low back syndrome were the principal or a contributory cause to his death. In sum, service connection for the cause of the Veteran’s death is not warranted because multiple myeloma was not incurred in or related to his military service. 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.