Citation Nr: 21065024 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-30 037 DATE: October 22, 2021 ORDER Service connection for the Veteran's cause of death is granted. FINDINGS OF FACT 1. The Veteran died in 2013. His death certificate lists the immediate cause of death as pancreatic cancer. 2. Resolving reasonable doubt in the claimant's favor, the evidence is relatively balanced as to whether his pancreatic cancer was etiologically related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.5, 3.303, 3.304, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1954 until his honorable discharge in August 1957. The Veteran died in in 2013, and the appellant is the Veteran's surviving spouse. This case come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for the Veteran's cause of death. In July 2021, the Veteran's surviving spouse testified at Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection Cause of Death Dependency and Indemnity Compensation (DIC) is a tax-free monthly benefit paid to eligible survivors of military servicemembers who died in the line of duty or eligible survivors of veterans whose death resulted from a service-related injury or disease. Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability after December 31, 1956. See also 38 C.F.R. § 3.5. The Veteran need not be service connected for the claimed disability at the time of death. DeLaRosa v. Peake, 515 F.3d 1319, 1323 (Fed. Cir. 2008); Patricio v. Shulkin, 29 Vet. App. 38, 44 (2017). It is sufficient if a nonservice-connected disability (on which a DIC claim is based) is later determined to be incurred in or aggravated by active military service, such that it would have been service connected. See generally id. "[I]ssues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime." 38 C.F.R. § 20.1106. Thus, the Board must consider service connection for relevant conditions anew, even if service connection was denied during the veteran's life. Id. Generally, service connection requires evidence of (1) a current disability, (2) an 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. 38 C.F.R. § 3.303(a); See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA regulations state 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." 38 C.F.R. § 3.312(a). A service-connected disability will be considered the "principal" or "primary" cause of death when "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 one "not inherently related to the principal cause." 38 C.F.R. § 3.312(c)(1). A service-connected disability is a contributory cause of death when the disability is shown to have: (1) "contributed substantially or materially" to the cause of death, (2) "combined to cause death," or (3) "aided or lent assistance to the production of death." Id. "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." Id.; see also 38 C.F.R. § 3.312(c)(3) (service-connected disease involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, raising the question whether there were debilitating effects and general impairment of health that would render the person materially less capable of resisting the effects of the disease causing death); 38 C.F.R. § 3.312(c)(4) (consider whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death). Accordingly, the Board must engage in a multi-step inquiry to resolve the claim for DIC under 38 U.S.C. § 1310. First, the Board must determine the Veteran has a service-connected disability on which the DIC claim is based. If not, then the Board must determine whether the disability on which the claim is based could be service connected. If so, the Board must determine if the (non-)service-connected disability was the primary cause or a contributing cause of the Veteran's death. Analysis The appellant's theory is that the Veteran was exposed to radiation during his active military service at Lake Mead, Nevada, where the military conducted nuclear testing. Specifically, she claims that the Veteran was exposed to radiation during Operation Plumbbob conducted in 1957. As a result, she theorizes the Veteran developed pancreatic cancer, which resulted in his death. For the reasons that follow, the Board finds the evidence is evenly balanced as to whether the Veteran was exposed to radiation resulting in his pancreatic cancer. Resolving reasonably doubt in the appellant's favor, service connection for the Veteran's cause of death is granted. First, the Board finds it unnecessary to discuss the legal theory of presumptive service connection for veteran's diagnosed with certain cancers due to exposure to radiation under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). This is because the record is not developed appropriately in this respect, but more importantly, the Board finds it is able to grant service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (despite the unavailability of presumptive service connection, service connection may still be granted on a direct basis). At the time of his death, the Veteran was not service connected for pancreatic cancer. This is not a bar to benefits as the Board is required to look at the claim anew without respect to whether service connection had been granted for pancreatic cancer at the time of his death. First element: A current disability The Veteran undoubtedly had pancreatic cancer at the time of his death based on his death certificate. Therefore, the first element of direct service connection is met. Second element: An in-service event, injury, or illness, or aggravation thereof The Board finds evidence is relatively evenly balanced as to whether he was exposed to radiation during his active military service at Lake Mead, Nevada. First, the Board addresses the evidence against the claim. According to the Veteran's in-service medical records, there is a lack of evidence indicating a diagnosis of pancreatic cancer while in service. There is also a lack of evidence of symptoms that may be associated with pancreatic cancer while in service. Likewise, there is a lack of evidence indicating that the Veteran was diagnosed with pancreatic cancer, or exhibited symptoms associated with pancreatic cancer, until decades (approximately 2012) following his separation from active service. As to the Veteran's military records, they do not document direct exposure (i.e., physical presence) to nuclear testing during his active military service. The Veteran's military occupational specialty was as a field artillery batteryman. This is not a specialty that is logically associated with nuclear testing or radiation exposure from nuclear tests. The Defense Threat Reduction Agency authored a May 2013 memorandum stating that the United States Government conducted Operation Plumbbob at the nuclear testing cite at the Nevada Test Site from May 28, 1957, to October 22, 1957. The unit diaries did not indicate that the Veteran was assigned to support that operation. The Agency reported that Lake Mead, where the Veteran was stationed at the time, was approximately 65 miles southeast from the Nevada Test Site. In addition, no dosimetry data was found documenting any radiation exposure to the Veteran. Next, the Board addresses the evidence in favor of the claim. The Veteran's military records document that he served at Lake Mead, Nevada, military base from September 1955 until August 1957. According to his Record of Service, his "primary" duties were as a guard and messman. The Veteran's surviving spouse submitted an affidavit from a fellow Marine, J.H., who served with the Veteran at Lake Mead, Nevada. He averred that the unit was told they were part of the "Armed Forces Special Weapons Project (AFSWP) formed to secure, test, and utilize nuclear (atomic) weapons." Their unit was involved with both military and civilian personnel that were developing, storing, testing, and deploying weapons and parts thereof associated with nuclear testing. He specifically cited a series of nuclear tests named "Project Teapot" for which his unit was in direct support. His unit was occasional assigned to take radiation readings from the direct and surrounding rea of the Nevada Test Site. The Veteran's surviving spouse also submitted a statement from a fellow Marine, S.H., who served with the Veteran at Lake Mead, Nevada. He too discussed the nuclear tests associated with Project Teapot. He stated that guards at Lake Mead went to the Nevada Test Site as part of their routine duty. As such, the guards were exposed to the same radiation as others on the based, but they were never given radiation badges or tested for radiation exposure. The Veteran's surviving spouse submitted photographs that the Veteran took while stationed at Lake Mead. One photograph depicts a sunset sky and dark images in the background. A second photograph depicts what appears to be a mushroom cloud rising into the sunset sky. A third photograph also depicts what appears to be a mushroom cloud rising into the sunset sky. The Veteran's surviving spouse testified the Veteran took these photographs while stationed at Lake Mead. On the envelope in which the photographs were kept, it reads, "A bomb photo taken by [the Veteran] 1957 Nevada Test Site." On one photograph, it reads, "Bomb test. Summer 1957." The Board has carefully reviewed the evidence. Generally, the lack of evidence within the Veteran's military records documenting duties involving nuclear testing at Lake Mead or duties associated with the Nevada Test Site weigh against finding that the Veteran was exposed to radiation. But the Board finds the statements submitted by the Veteran's surviving spouse from fellow Marines who served at Lake Mead Military Base are credible and probative of the duties in which the Veteran engaged. Significantly, the Veteran was assigned to be a guard at Lake Mead. Fellow Marine, S.H., stated that Lake Mead guards routinely patrolled the areas at and around the Nevada Test Site. Likewise, fellow Marine, J.H., indicated that the unit to which he and the Veteran were assigned directly supported the nuclear testing and were assigned to take radiation readings from the direct and surrounding areas of the Nevada Test Site. The Board finds these specific duties would not necessarily have been included in the military documents due to their security classification, as indicated by J.H.'s statements. Therefore, the Board finds it is reasonable to conclude, absent contrary evidence, that the Veteran's duties at Lake Mead as a guard also included travel to and from the Nevada Test Site and involved patrol of the surrounding areas. Furthermore, the photographs submitted by the Veteran's surviving spouse are significant. The Board finds that the photographs are accurate, credible depictions of what the Veteran observed in 1957 while in the area surrounding the Nevada Test Site. Taken together, this evidence shows the Veteran's presence at Lake Mead and the Nevada Test Site between May 1957 and August 1957 while nuclear testing occurred. The evidence also reasonably indicates he was within a distance of the nuclear testing, whether active or not, that may have exposed him to radiation. Resolving reasonable doubt in the claimant's favor, the Board finds the evidence sufficiently establishes that the Veteran was exposed to radiation during his active military service in 1957 while stationed at Lake Mead Military Base. Therefore, the second element of direct service connection is satisfied. Third element: A causal link The Veteran's surviving spouse submitted a private medical opinion from Dr. J.F. dated July 22, 2021. According to Dr. J.F., the Veteran's exposure to atomic weapons research testing in the 1950s resulted in radiation exposure, which "undoubtedly" contributed to his death from pancreatic cancer. The Board notes this opinion lacks any rationale. Nevertheless, the Board has concluded that the Veteran was exposed to radiation. The Board will take judicial notice that VA regulation 38 C.F.R. § 3.311 recognizes that pancreatic cancer is a radiogenic disease that may be induced by ionizing radiation. Although not conclusive medical evidence, the Board finds this regulation adopted by VA lends support to Dr. J.F.'s medical opinion that the Veteran's pancreatic cancer was caused by his radiation exposure. Therefore, absent contrary evidence, the Board finds the third element is satisfied. Accordingly, resolving reasonable doubt in the claimant's favor, the Veteran's pancreatic cancer is subject to direct service connection. As the Veteran's death certificate lists pancreatic cancer as the primary cause of death, service connection for cause of the Veteran's death is warranted because it was a principal cause of his death. 38 C.F.R. § 3.312. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.