Citation Nr: 20008663 Decision Date: 02/03/20 Archive Date: 02/03/20 DOCKET NO. 14-17 073 DATE: February 3, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT The Veteran’s cause of death, multiple myeloma, was related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1943 to February 1946. He died in June 1999 and the appellant is his surviving spouse. The appellant testified before the undersigned Veterans Law Judge (VLJ) Strommen in February 2016. In a July 2017 decision, the Board denied the appellant’s claim. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2018 Memorandum Decision, the Court vacated the July 2017 Board decision and remanded the appellant’s claim. A subsequent Board hearing was held at the appellant’s request in October 2019, before the undersigned VLJ Trueba. At this Board hearing, the appellant’s representative waived the right to a third Board hearing. See October 2019 Board Hearing Transcript, Page 10; see generally Arneson v. Shinseki, 24 Vet. App. 379 (2011). Service Connection for Cause of the Veteran’s Death Background and Legal Criteria Dependency and indemnity compensation (DIC) is warranted when a veteran dies from a service-connected or compensable disability. See 38 U.S.C. § 1310(a). 38 C.F.R. § 3.312(a) states that “[t]he 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.” During his lifetime, the Veteran was not service-connected for any disabilities. The Veteran’s death certificate listed the immediate cause of death as multiple myeloma. As the Veteran was not service-connected during his lifetime for multiple myeloma, the Board will address whether entitlement to service-connection for multiple myeloma would be warranted. See 38 U.S.C. § 1310 (“The standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title [38 U.S.C. §§ 1101 et seq.]”). Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection, three elements must be established. These elements are: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service,” which is often referenced as the “nexus” element. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Evidence and Analysis The appellant has contended that the Veteran’s multiple myeloma was related to his in-service exposure to solvents. See April 2016 Representative Statement. This exposure reportedly occurred in the course of his duties on the USS LST-532, to include while docked at a shipyard in Norfolk, Virginia. See February 2016 Board Hearing Transcript, pages 2–3. The appellant testified that the Veteran talked about the maintenance and cleaning of the ship and that chemicals were used on the ship. See February 2016 Board Hearing Transcript, pages 10-11. A September 1945 service treatment record (STR) noted that the Veteran was at Camp Bradford in Norfolk, Virginia. The Veteran’s Notice of Separation from U.S. Naval Service form noted a qualification of “Deck general” and a rating of “AS, Midshipman.” It was also noted that he served on the USS LST-532. Of record is a November 2019 private medical opinion from Dr. C.K., who was noted to be a board-certified Radiation Oncologist. Dr. C.K. noted that he had reviewed the Veteran’s “military service records, military and VA medical records, private medical records, communications with the VA and death certificate.” Dr. C.K. referenced the Veteran’s period of active service and stated that “[d]uring that era and up until the 1990s, the ubiquitous solvents Benzene and Trichloroethylene (TCE) were commonly used as a metal degreaser in numerous occupations and settings” and that “[t]hese particular solvents are identified in the military training manuals of that era.” Resolving any reasonable doubt in the appellant’s favor, the Board finds the appellant’s contentions regarding the Veteran’s in-service exposure to solvents to be credible and consistent with the circumstances of his service. See 38 C.F.R. § 3.102 (“When…a reasonable doubt arises regarding…any other point, such doubt will be resolved in favor of the claimant”); 38 C.F.R. § 3.303 (“Each disabling condition…for which [a Veteran] seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence”). As the evidence indicated that the Veteran’s cause of death was multiple myeloma and the Board has found that the Veteran was exposed to solvents during his active service, the remaining issue is whether there is a nexus between such exposure and the Veteran’s multiple myeloma. The Board previously obtained a December 2016 Veterans Health Administration (VHA) opinion from Dr. S.G. The opinion provided indicated, essentially, that the Veteran’s multiple myeloma was not attributable to in-service solvent exposure. In the December 2018 Court Memorandum Decision, the Court found the December 2016 VHA opinion to be, at least in part, inadequate. Subsequently, the November 2019 private opinion from Dr. C.K. was submitted. This opinion was extensive and included citation to various evidence, to include medical literature. The opinion provided indicated, essentially, that the Veteran’s multiple myeloma was attributable to in-service solvent exposure. Dr. C.K. stated that “[a]ccording to the [Agency for Toxic Substances and Disease Registry (ATSDR)], Benzene and TCE are each ‘equipoise and above’ for causing Multiple Myeloma” and that “[s]everal menta-analyses confirm the epidemiologic link between Benzene exposure and Multiple Myeloma. The additive or synergistic effect of two distinct human carcinogens amplifies the risk from either one alone.” It was also noted that “[o]ther than exposure to solvents, [the Veteran]…had no known exposure to radiation or other carcinogens before or following his military service.” Dr. C.K. also explained his disagreement with Dr. S.G.’s December 2016 VHA opinion. Dr. C.K. concluded that “I am therefore persuaded, based upon a reasonable degree of medical certainty and scientific probability, that [the Veteran’s] diagnosis of Multiple Myeloma, and his cause of death, were ‘at least as likely as not’ a direct result of his exposure to TCE and Benzene while serving the US Navy.” Upon review, and resolving any reasonable doubt in the appellant’s favor, the Board finds that the Veteran’s cause of death, multiple myeloma, was related to his active service. See 38 C.F.R. § 3.102 (“When…a reasonable doubt arises regarding service origin…such doubt will be resolved in favor of the claimant”). As noted, a negative December 2016 VHA opinion was found, at least in part, to be inadequate by the Court. The remaining competent evidence of record addressing the issue of nexus was the November 2019 private opinion from Dr. C.K. This opinion was from a board-certified Radiation Oncologist and included rationale and reasoning for the conclusion provided that, essentially, the Veteran’s multiple myeloma was related to his in-service exposure to solvents. As to the issue of nexus, the Board finds the November 2019 private opinion from Dr. C.K. to be the most probative evidence of record. In sum, the Board finds that the Veteran’s cause of death, multiple myeloma, was related to his active service. As such, the Board concludes that the criteria for entitlement to service connection for the cause of the Veteran’s death have been met and the appellant’s claim is therefore granted. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.