Citation Nr: 20062011 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 14-18 733 DATE: September 21, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death, is granted. Entitlement to Dependency and indemnity (DIC) benefits under the provisions of 38 U.S.C. § 1318 is dismissed as moot. FINDINGS OF FACT 1. The Veteran died in March 2009. The Veteran’s death certificate shows his immediate cause of death was respiratory failure due to metastatic disease to chest, abdomen, and pelvis due to metastatic disease of the cervical spine (bone marrow) due to multiple myeloma with contributing conditions of general weakness, malnutrition, and right arm weakness. 2. The Veteran was exposed to chemicals, including trichlorotrifluoroethane and trichloroethane, which as considered carcinogenic in nature, while on active duty. 3. The competent evidence of record is in relative equipoise as to whether the Veteran’s in-service exposure to chemicals contributed to his multiple myeloma and ultimately his cause of death. 4. The claim of entitlement to DIC under the provisions of 38 U.S.C. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death, have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.50, 3.102, 3.152, 3.303, 3.304, 3.312. 2. The claim of entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1975 until his honorable discharge in June 1997. The Veteran died in March 2009. The Appellant is seeking benefits as the Veteran’s surviving spouse. Prior to discussing the appeal at hand, the Board of Veterans’ Appeals (Board) would be remiss if it did not recognize the Veteran’s outstanding military service. The Veteran was clearly a credit to the United States Air Force and to his family, and his service to his country is greatly appreciated. This matter comes before the Board on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 the Board denied entitlement to service connection for the cause of the Veteran’s death and entitlement to DIC benefits. With respect to these issues, the Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). Counsel for both parties subsequently filed a Joint Motion for Remand (JMR), in which they agreed the Board’s decision to deny the claims listed above should be vacated because, according to the parties, the Board erred when it failed to ensure that the VA provided an adequate opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). By granting the JMR, the Court vacated the May 2019 decision and remanded the issues back to the Board. The Veteran’s representative provided supplemental argument in a July 2020 brief. 1. Entitlement to service connection for the cause of the Veteran’s death is granted. 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(a). 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 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 and must be shown to have contributed substantially or materially to death; combined to cause death; or 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). In determining whether the disorder that resulted in the death of a Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing that a disability is service connected for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 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. 38 C.F.R. § 3.303(d). Evidence and Analysis The Appellant seeks benefits based on service connection for the cause of the Veteran’s death. She alleges the Veteran’s multiple myeloma was caused by the Veteran’s exposure to trichlorotrifluoroethane and trichloroethane during service. See November 2009, Statement from G.H., M.D. For the reasons that follow, the Board finds service connection for the cause of the Veteran’s death is warranted. The Veteran’s service treatment records are silent for complaints, treatment, or diagnosis related to multiple myeloma. The Board notes the Veteran’s DD Form-214 reveals his military occupational specialty (MOS) was Aircraft Electrician and Environmental System. The Veteran’s service personnel records reveal exposure to chemicals including trichlorotrifluoroethane. See December 1992 Annual Occupational Health Survey, Electro Environmental. The Board conceded in-service exposure to trichlorotrifluoroethane and trichloroethane. See Board’s remand decision, dated April 2018. As the evidence indicates the Veteran’s cause of death was respiratory failure due to metastatic disease to the chest, abdomen, and pelvis due to metastatic disease of the cervical spine (bone marrow), due to multiple myeloma with contributing conditions of general weakness, malnutrition, and right arm weakness, and the Board has found the Veteran was exposed to carcinogenic chemicals during his active service, the remaining issue is whether the Veteran’s cause of death is related to his military service. In January 2019, a VA examiner provided an opinion as to whether the Veteran’s exposure to carcinogenic chemicals during service was a principle or contributory cause of the Veteran’s death or materially hastened death. After reviewing the evidence of record, the examiner provided a negative nexus opinion. In addressing this theory of service connection, the examiner explained trichlorotrifluoroethane and trichloroethane are solvents, and that “Uptodate” reflects that “‘organic solvents’ ‘may play a role’” in causing multiple myeloma “‘but the evidence is not compelling.’” See January 2019 VA opinion. The examiner also explained Science Daily noted that “‘exposure to organic solvents was not’” a risk factor to multiple myeloma. Finally, the examiner explained that the Mayo Clinic only listed increasing age, male sex, black race, family history, and personal history of a monoclonal gammopathy as risk factors. The parties to the February 2020 JMR agreed the January 2019 VA opinion addressing whether the Veteran’s cause of death is related to service is inadequate as its rationale “does not discuss any facts pertaining to the Veteran’s condition or individual circumstances, including any risk factors that may contribute to the Veteran’s particular type of cancer.” Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). While the examiner listed some “risk factors that may contribute to the Veteran’s particular type of cancer,” he failed to apply them to the Veteran or otherwise explain their relevance. Thus, remand of the claim is required for a new opinion that comports with Bailey. In June 2020, a private medical opinion completed by Dr. C.K. was submitted. This opinion was extensive and included citation to various evidence, including medical and scientific literature. The opinion provided indicated, essentially, that the Veteran’s multiple myeloma was attributable to in-service exposure to chemicals. Dr. C.K. stated the contemporary military technical training manuals for the Veteran’s MOS lists TCE (Trichloroethylene) as the main solvent used, as well as a “mixture” of solvents such as Stoddard Solvent and MIL PD-680 that each contain Benzene. Dr. C.K. noted the VA has acknowledged at least one chemical with known carcinogenic properties was present in the Veteran’s shop during service. He stated that: [A]ccording to the Agency for Toxic Substances and Disease Registry (ATSDR), the consensus is that TCE and Benzene are each “equipoise and above” for causing multiple myeloma. Several meta-analyses consistently confirm the epidemiologic link between Benzene exposure and multiple myeloma. The additive or synergistic effect of two district human carcinogens, each linked with multiple myeloma, synergistically amplifies the risk from either one alone. Dr. C.K. stated the Veteran did not have one single personal risk factor for multiple myeloma, namely he was a never-smoker, was not of African American race, had no family history of multiple myeloma or related hematologic cancers. Dr. C.K. stated the Veteran’s at age fifty-one was nineteen years younger than what is average for multiple myeloma, pointing to aggressive carcinogens at play. Dr. C.K. concluded: I am therefore persuaded, based upon the exposure and the medical and scientific studies, and to a reasonable degree of medical certainty, that the Veteran’s diagnosis of multiple myeloma, and therefore his cause of death, were at least as likely as not a direct result of his exposure to Benzene and TCE from his twenty-one years of military occupation in the United States Air Force. Upon review, and resolving any reasonable doubt in the Appellant’s favor, the Board finds the Veteran’s cause of death, multiple myeloma, was related to his active service. See 38 C.F.R. § 3.102. As noted, a negative January 2019 VA opinion was found to be inadequate by the Court. The remaining competent evidence of record addressing the issue of nexus was the June 2020 private opinion from Dr. C.K. This opinion is from a board-certified Radiation Oncologist and included rationale and reasoning for his conclusion and provided that, essentially, the Veteran’s multiple myeloma was related to his in-service exposure to carcinogens. As to the issue of nexus, the Board finds the June 2020 private opinion from Dr. C.K. to be the most probative evidence of record. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the Nation, ‘in recognition of our debt to our Veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). Therefore, entitlement to service connection for the cause of the Veteran’s death, for purposes of receiving DIC benefits pursuant to 38 U.S.C. § 1310 is warranted. 2. Entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 is dismissed. Because the Board has granted entitlement to service connection for the cause of the Veteran’s death, the remaining claim of entitlement to DIC under the provisions of 38 U.S.C. § 1318 has been rendered moot as DIC benefits granted to a surviving spouse under 38 U.S.C. § 1318 would be paid in the same manner as if the Veteran’s death were service-connected. 38 U.S.C. § 1318(a); see also 38 C.F.R. § 3.22. As such, the claim is dismissed. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace A. Johnk, Associate 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.