Citation Nr: 21002013 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-35 226 DATE: January 12, 2021 ORDER Entitlement to service connection for the cause of death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate shows that he died from respiratory failure due to lung cancer. 2. During his lifetime, the Veteran was not service connected for any disability. 3. The Veteran is not shown to have been exposed to radiation during service. 4. The Veteran’s lung cancer did not become manifest during service or for many years thereafter and is not shown to have been related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1974 to May 1975. He died in September 2008. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant was scheduled to testify at a Board hearing in February 2019. She did not appear for that hearing and to date, has not requested that the hearing be rescheduled. Thus, the appellant’s hearing request is deemed to have been withdrawn. In February 2020, the case was remanded for further development. Entitlement to service connection for the cause of the Veteran’s death. During his lifetime, the Veteran did not receive service-connected compensation for any disability. In this appeal, the appellant essentially alleges that the Veteran was exposed to radiation and/or other chemicals during service and that this exposure caused his lung cancer, which in turn caused his death. Dependency and Indemnity Compensation (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. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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 to it. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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(c). In cases of service connection for the cause of death of a veteran, the first requirement of a current disability is deemed to have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). Medical evidence is required to establish a causal connection between service or a disability of service origin and a veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Determinations as to whether service connection may be granted for a disability which caused or contributed to a veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of direct service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). For certain chronic disorders, such as lung cancer, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service treatment records do not show any indication of cancer. They show that the Veteran was seen by medical personnel for upper respiratory symptomatology in October 1974 and November 1974. In November 1974, a chest-X-ray showed an infiltrate in the medial basal segment of the right lower lobe that was found to be a right lower lobe pneumonia. At his May 1975 separation examination, the Veteran’s lungs and chest were found to be normal. On his May 1975 report of medical history at separation, the Veteran reported that he was in excellent health and indicated that he did not currently have asthma, shortness of breath, pain or pressure in the chest or chronic cough. June 2007 VA treatment records show that the Veteran was seen for a right lung mass with direct extension into the chest wall. A biopsy of the mass found that the Veteran had squamous cell carcinoma of the lung and it was also found that the cancer had metastasized to the lymph nodes. The Veteran subsequently underwent cancer treatment, including chemotherapy. In April 2008, the cancer was found to be stage 4 and that surgical resection was not indicated. In September 2008, the Veteran passed away. His death certificate shows that the cause of death was respiratory failure due to metastatic nonsmall cell lung cancer. Thus, the first indication of lung cancer was decades after his separation from service. In a July 2010 statement, the appellant asserted that during service, the Veteran worked on atomic weapons and was exposed to radiation. In a May 2013 radiation dose information memorandum, the Headquarters of the Department of the Air Force (AF) noted that it had queried the occupational radiation exposure monitoring records in the U.S. Air Force Master Radiation Registry. They Air Force found no external or internal data for the Veteran. Also, the Air Force Safety Center was able to obtain the Veteran’s service records from the National Personnel Records Center (NPRC). The Air Force noted that the Veteran served as an apprentice munitions maintenance specialist, AF specialty code 461, at Hill Air Force Base, Utah. The Air Force noted that the Veteran was not trained to perform nuclear weapon maintenance operations. In addition, the unit to which he was assigned at Hill Air Force Base did not have a nuclear weapons mission. Further, the Veteran’s record did not contain a DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, which would have been kept for him had he been in an occupational specialty involving radiation exposure. Hence, the Air Force concluded that there was no reasonable basis that the Veteran’s duties in the Air Force would have had any radiation exposure potential. In an October 2015 Form 9, the appellant asserted that while working at a bomb factory during service, the Veteran was exposed to a variety of toxic/hazardous chemicals and airborne particles. The appellant contended that the Veteran’s cancer and ultimate death was due to this exposure. In a July 2020 opinion, a VA contract physician reviewed the claims file. The physician indicated that the current, widely accepted, peer-reviewed literature does not establish cause and effect for development of non-small cell lung cancer due to remote, general environmental exposures. The physician noted that the appellant did not cite specific environmental exposures and without such, the Veteran’s lung cancer was less likely than not to be related to environmental exposures while in service. Also, the Veteran’s service treatment records showed no indication of a condition that would lead to cancer while in service as upper respiratory infections do not increase the risk for lung cancer. Rather, the lung cancer was more likely than not due to the Veteran's long pack-year history of smoking. In sum, it was less likely than not that the Veteran's lung cancer was due to unspecified exposures while in service and more likely than not due to smoking. As noted above, during his lifetime, the Veteran was not service connected for any disability. Also, as explained above, an investigation by the Air Force concerning whether the Veteran was exposed to any radiation during service produced a specific negative result. There is no specific evidence to the contrary (e.g. documentation tending to indicate in-service radiation exposure). The appellant did initially report that the Veteran was exposed to radiation during service. However, this report appears to have been based on information the Veteran had provided to her or her assumption that the Veteran worked in munitions. Notably, neither the Veteran nor the appellant has provided any specific information tending to indicate such radiation exposure occurred but rather just a general assertion of its occurrence. Thus, given the result of the specific investigation performed by the Air Force, which found that the Veteran was not involved in nuclear weapons development and thus, would not have been exposed to radiation, the Board finds that the weight of the evidence is against the presence of such exposure. Accordingly, there is no basis for awarding service connection for the cause of the Veteran’s death based on the Veteran having passed away from a radiogenic disease (i.e. lung cancer). See e.g. 38 C.F.R. § 3.311. The appellant has also alleged that the Veteran’s lung cancer resulted from more general chemical exposure from his munitions duties in service. However, the July 2020 VA contract physician specifically considered this assertion and ultimately concluded that the lung cancer was less likely than not related to the unspecified environmental exposure from munitions work in service and more likely than not related to the Veteran’s smoking history. There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the Veteran’s lung cancer was related to the unspecified environmental exposures during service). Although the appellant may believe that the Veteran’s lung cancer was caused by environmental exposures during service, as a layperson, without any demonstrated expertise concerning the etiology of lung cancer, her opinion may not be afforded more than minimal probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, this assertion is outweighed by the opinion of the VA contract examiner. In sum, the lung cancer, which caused the Veteran’s death was not service connected during the Veteran’s lifetime and the weight of the evidence indicates that it was not otherwise service-related. Also, there is no indication of any other service-related disability, which contributed to cause the Veteran’s death. Accordingly, the preponderance of the evidence is against this appeal and it must be denied. 38 C.F.R. § 3.303, 3.312. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.