Citation Nr: 20067138 Decision Date: 10/15/20 Archive Date: 10/15/20 DOCKET NO. 13-07 972 DATE: October 15, 2020 ORDER Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in July 2006 from sepsis due to multiple myeloma. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s multiple myeloma was incurred in or caused by service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to March 1993. The Veteran passed away in July 2006, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In her March 2013 substantive appeal, the appellant requested a hearing before a Veteran’s Law Judge. However, in March 2018, she withdrew her request for a hearing. This matter was previously before the Board in April 2018, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. 1. Entitlement to service connection for the cause of the Veteran’s death The appellant seeks dependency and indemnity compensation (DIC) benefits as the surviving spouse of the Veteran, who passed away in July 2006 from sepsis caused by multiple myeloma. The appellant asserts that the Veteran’s multiple myeloma was caused by in-service exposure to benzene, ionizing radiation, and/or asbestos while serving on four nuclear submarines. DIC benefits are payable to the surviving spouse, children, and parents of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of the veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312.   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. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service personnel records show that the Veteran served on multiple submarines during his career in the Navy, including the USS Hunley, the USS Daniel Boone, the USS George C. Marshall, and the USS George Washington Carver. In September 2019 and October 2019 letters to the Naval Sea Systems Command (NAVSEA), VA requested information regarding the appellant’s claim that the Veteran was exposed to benzene and/or asbestos while serving aboard Navy submarines. However, in November 2019, NAVSEA indicated that it had no records responsive to VA’s request. In support of her claim that the Veteran was likely exposed to benzene during service, the appellant submitted a copy of a 2008 publication by the National Academy of Sciences’ (NAS) National Research Council (NRC) entitled Emergency and Continuous Exposure Guidance Levels for Selected Submarine Contaminants: Volume 2. The NRC publication notes that a submarine is an enclosed and isolated environment when submerged, and unlike a typical work environment, its crew is exposed to air contaminants 24 hours a day. According to the NRC publication, the ninety-day continuous exposure guidance level (CEGL) for benzene on Navy submarines at the time was 1 part per million (ppm). In the publication, the NRC recommended a ninety-day CEGL of .2 ppm, which, according to the appellant’s attorney, was ultimately adopted by the Navy based on 2007 findings by the Division of Cancer Epidemiology and Genetics at the National Institute of Health that benzene affects the progenitor cells that give rise to blood cells at concentrations below 1.0 ppm.   The appellant initially submitted three opinions from the Veteran’s private treating oncologist, Dr. Tan, who opined that the Veteran’s multiple myeloma was caused by in-service exposure to radiation, benzene, and asbestos. However, in the April 2018 remand, the Board found that those opinions lacked probative value, as they were speculative in nature and were not supported by a rationale specific to the facts of the Veteran’s case. In August 2018, the appellant submitted an opinion from Dr. Brautbar, a private physician who specializes in forensic medicine, toxicology, and occupational and environmental medicine. After reviewing the evidence of record, Dr. Brautbar opined that, to a reasonable degree of medical probability and certainty, it was at least as likely as not that the Veteran’s multiple myeloma was caused by in-service exposure to benzene and radiation. With respect to benzene exposure, Dr. Brautbar indicated that his opinion was based on an estimated exposure level of 1 ppm throughout the Veteran’s submarine service from 1971 to 1980. He also cited to multiple studies which found that exposure to benzene increases the risk of developing multiple myeloma, even at low level exposures. In May 2020, a VA physician reviewed the evidence of record and opined that it was less likely than not that the Veteran’s multiple myeloma was incurred in or caused by service. In June 2020, VA returned the claims file to that VA physician and asked him to review the opinions submitted by the appellant and provide an opinion as to the Veteran’s cumulative benzene exposure at a 90-day continuous exposure level of 1 ppm over his career in Navy submarines at least as likely as not caused his multiple myeloma, which ultimately resulted in his death. Later that month, the VA physician reviewed the evidence of record, including the private opinions submitted by the appellant and the 2008 NRC publication, and again opined that it was less likely than not that the Veteran’s multiple myeloma was caused by in-service exposure to benzene. In support of this, the physician indicated that he was unaware of any evidence-based medical literature or any supporting evidence in the Veteran’s medical records that would support the claim, and he copied and pasted information about multiple myeloma from the online medical research source Up to Date. With respect to the private opinions submitted by the appellant, the VA physician noted that Dr. Tan’s use of the word “could” was speculative; “studies” are not a conclusion of fact; and an “association” does not mean causation. In July 2020, the appellant submitted another opinion from a private consultant, Dr. Infante, who has a PhD in public health, specializes in epidemiology and occupational and environmental health, and has published over 25 scientifically peer-reviewed articles related to benzene exposure and the risk of developing multiple myeloma, leukemia, and other benzene-related diseases. After reviewing the evidence of record, Dr. Infante estimated that the Veteran’s in-service cumulative benzene exposure was 12.92 ppm-years, which was based on the Navy’s ninety-day CEGL for benzene on Navy submarines of 1 ppm at the time and the Veteran’s 34 months of submarine service between 1971 and 1980. Dr. Infante opined that, to a reasonable degree of scientific certainty, the Veteran’s benzene exposure while serving on US submarines was more likely than not a cause of his multiple myeloma. In support of this, Dr. Infante cited to numerous studies regarding an association between benzene exposure and the development of multiple myeloma. He explained that the Veteran died from multiple myeloma at age 57, which is significantly younger than the median age of death from multiple myeloma, and that such an early age at death suggests an environmental etiology. He indicated that this was also consistent with the Veteran’s latency period between his initial exposure and his date of death, which fell within the range of latency periods associated with benzene exposure and the subsequent development of multiple myeloma. Dr. Infante also indicated that the Veteran did not endorse any other risk factors for the development of multiple myeloma, such as smoking or engaging in hobbies that would have exposed him to benzene-containing solvents. The record includes medical opinions that are in favor of and against the claim. Upon review of the record, the Board finds the competent and probative evidence to at least be in equipoise. After resolving all doubt in the appellant’s favor, the Board finds that probative evidence demonstrates that it is at least as likely as not that the Veteran’s multiple myeloma, which ultimately resulted in his death, was related to his military service. Accordingly, service connection for the cause of the Veteran’s death is granted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.