Citation Nr: 20007565 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 13-23 950 DATE: January 30, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in April 2009; the immediate cause of death was pneumonia due to "ARDS," i.e., acute respiratory distress syndrome. 2. Service did not cause the Veteran's esophageal adenocarcinoma. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1116, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active military duty from March 1955 to September 1964. The Veteran died in April 2009. The Appellant is his surviving spouse. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Issue: Entitlement to service connection for the cause of the Veteran's death Summary of Argument The Veteran's death certificate shows that he died in April 2009, at age 73, and the immediate cause of death was pneumonia, due to "ARDS" (acute respiratory distress syndrome), as a result of esophageal adenocarcinoma, with the latter being of "years" duration. No autopsy was performed. It was also indicated that tobacco use probably contributed to his death. The Appellant, through counsel, contends that the Veteran's in-service exposure to radar caused him to develop the esophageal adenocarcinoma, which in turn contributed to his death. Because the Veteran had not claimed service connection esophageal adenocarcinoma prior to his death, the Board must conduct a service connection analysis for this disorder as part of the cause of death claim. Service Connection – Direct Basis Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service Connection – Cause of Death To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as cardiovascular disease, if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 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, or 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. Analysis – Service Connection for Esophageal Adenocarcinoma The Veteran had esophageal adenocarcinoma prior to his death. This satisfies the first prong of a direct service connection claim. The Veteran's DD Form 214 shows that his military occupational specialty was 30151B, an aircraft electronic navigation equipment repairman, the civilian equivalent of which was a radar mechanic. As the Board explained in December 2015 when it remanded this claim for additional development, the U.S. Court of Appeals for Veterans Claims has taken judicial notice that radar equipment emits microwave-type non-ionizing radiation which is not subject to review under VA's ionizing radiation statute and regulations. Rucker v. Brown, 10 Vet. App. 67 (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). Given the foregoing, the Board finds the Veteran was exposed to microwave-type non-ionizing radiation in service. This satisfies the second prong of a direct service connection claim. The appeal turns on the third prong of a direct service connection claim – medical nexus. The Appellant, in September 2015, submitted "Emission of Parasitic X-Rays from Military Radar Transmitter and Exposure of Personnel: Towards a Retrospective Assessment" by Schirmer and a private nexus opinion from Dr. J.E. The Appellant contended that Dr. J.E. provided this "scientific journal article" and opined that "it is as likely as not that [the Veteran's] esophageal adenocarcinoma was contributed to by his exposures to ionizing radiation exposures from the Air Force radar equipment." The Board, upon receiving this submission and considering it in December 2015, ordered a post-mortem opinion on the relationship between the Veteran's radar exposure and his esophageal adenocarcinoma in December 2015. However, the Board expressly identified the discussion of Rucker and ordered that the opinion be analyzed pursuant to Rucker. A VA physician, in June 2016, found a negative causal relationship. The Appellant, in December 2016, did not, despite the Board putting her on notice of its view of non-ionizing radiation, challenge its finding under Rucker. Instead, the Appellant simply reiterated the "proposition that ionizing radiation from radar equipment can cause cancer" (emphasis in original) and submitted two additional articles – 1) "Long-Term Exposure to Microwave Radiation Promotes Cancer Growth: Evidences from Radars and Mobile Telecommunication Systems" by Yakymenko, and 2) "Epidemiologic Evidence Relevant to Radar (Microwave) Effects" by Goldsmith. The Board, in May 2017, determined that an additional medical opinion was warranted to consider these new articles as well as the relationship, if any, between the Veteran's in-service non-ionizing radiation exposure and his esophageal adenocarcinoma. In July 2017, Dr. D.W., M.D. and Ph.D., a VA hematologic-oncologic staff physician, found "it is not at least as likely as not that the Veteran's esophageal adenocarcinoma began during or was otherwise caused by his active duty service, considering only the effects of non-ionizing radiation from radar." To support this, he first noted that Dr. J.E.'s opinion does not address non-ionizing radiation. He then reviewed the three articles the Appellant submitted and cited three additional articles. Most relevant, he explained why "The Microwave Problem," cited in Rucker, rebuts articles by Yakymenko and Goldsmith. Given the foregoing, the Board finds the Appellant has not satisfied the medical nexus prong for four reasons. First, the Board, as noted above, disagrees with the Appellant that the Veteran was exposed to ionizing radiation from radar. The Appellant has not provided evidence to support why the Board should find Rucker does not apply here. Second, and by extension, Dr. J.E.'s nexus opinion concerns ionizing radiation, not non-ionizing radiation. Third, and for the sake of completeness, Dr. J.E. does not cite any medical authority for his conclusion. Indeed, while counsel stated that Dr. J.E. "provided" the Schirmer article submitted in September 2015, Dr. J.E.'s opinion does not cite this article to support his conclusion. In contrast, Dr. D.W. expressly cited six medical journal articles and explained their relevance to his conclusion. Fourth, Dr. J.E. does not have any specialized training, as evidenced by his curriculum vitae, to opine on such matters. In contrast, Dr. D.W. specializes in oncology, so the Board finds his background more relevant vis-à-vis esophageal adenocarcinoma. Because the Appellant has not satisfied all three prongs of a direct service connection claim, the Board finds service connection is not warranted for esophageal adenocarcinoma. Analysis – Service Connection for Cause of Death Service connection for cause of death necessitates a service-connected disability. VA had only service connected the Veteran's hearing loss and tinnitus when the Veteran died. The evidence does not show, nor does the Appellant argue, that these contributed to his esophageal adenocarcinoma. In the absence of another relevant service-connected disability, the Appellant's claim for cause of death must fail. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.