Citation Nr: 21068764 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 11-03 921 DATE: November 12, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in September 1999 and carcinoma of the pancreas was the principal or contributory cause of the Veteran's death. 2. The evidence is in equipoise as to whether the Veteran's carcinoma of the pancreas was caused by exposures during in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(6)(iii), 3.309(e), 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from June 1991 to January 1992, and from October 1996 to July 1997, including service in Southwest Asia during the Persian Gulf War. The Veteran had additional service in the United States Army Reserves. The Veteran died in September 1999 and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2014 decision, the Board determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for the cause of the Veteran's death. The appellant filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2016 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's May 2014 decision. In December 2016, the Board reopened the appellant's claim and remanded it for additional development. In June 2017, the Board denied the appellant's claim for service connection for the cause of the Veteran's death. The appellant again appealed to the Court. In December 2019, the Court granted the parties' JMR which vacated and remanded the claim. Most recently, the claim was remanded by the Board in July 2020. In June 2021, the appellant's representative requested that the Board stay adjudication of the claim until August 31, 2021. In August 2021, the appellant's representative requested another stay of adjudication for 60 days. The requested time period to stay the adjudication has passed. Thus, the appellant is not prejudiced by the adjudication. Entitlement to service connection for the cause of the Veteran's death is granted. The appellant seeks service connection for the cause of the Veteran's death. The appellant contends that the Veteran died due to pancreatic cancer, which was caused by his exposure to ionizing radiation and burning gases and oil rigs during his tour in the Persian Gulf. See September 2010 VA 21-4138; July 2013 correspondence. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. 38 U.S.C. § 1310 ; 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singularly 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 which contributes substantially or materially to death or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d). Second, service connection can be established under 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d)(2) include cancer of the pancreas. 38 U.S.C. § 1112 (c)(2); 38 C.F.R. § 3.309 (d). In order for the presumption to attach, pancreatic cancer must become manifest 5 years or more after exposure. 38 C.F.R. § 3.311 (b)(5). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309 (b)(i), (ii). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R.§ 3.309 (d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309 (d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and includes pancreatic cancer. 38 C.F.R. § 3.311 (b)(2). Turning to the evidence of record, the Board notes that the Veteran's personnel records indicate that he served in Southwest Asia from June 1991 to November 1991. See DD Form 214. His military occupational specialty was transportation management. The personnel records, including his evaluation for the rating period from September 1991 to November 1991, indicate that the Veteran served as the commander of the 1103rd Transportation Battalion of the 22nd Support Command Unit during this time. His duties included the retrograde and repositioning of supplies and equipment from the Southwest Asia theater of operations. In a May 2006 official report of the activities of the 1103rd Transportation Battalion from June 1991 to November 1991, the battalion was noted to be responsible for the retrograde movement of certain vehicle assets in the theater and the movement of captured enemy equipment. In July 1999, the Veteran reported that his duties included transporting tanks that had been disabled due to firing "sabot rounds" while stationed in the Persian Gulf. He further indicated that exposure to depleted uranium from these vehicles subsequently caused his pancreatic cancer. The Veteran also asserted that he was exposed to radiation from the "melt down" at Chernobyl, in the former Soviet Union (now Ukraine) while he was stationed in Heidelberg, Germany from April 1986 to May 1986. In an August 2004 correspondence, the Veteran reported that he inspected tanks that had been blown up at Camp Doha. See also April 2001 letter from Dr. Hoffman (noting an exposure history, among others, from persistent blazes during Desert Storm in 1991). In June 2008, the appellant detailed the videotapes previously submitted by the Veteran, including one video of the Veteran at Camp Doha and another video where the Veteran detailed being in that area of Doha and what was called "Death Valley." In a December 2016 appellate brief written by the Veteran's former representative, the representative indicated her review of the video showed the Veteran at Camp Doha while munitions and vehicles containing depleted uranium were still smoldering. The appellant, who was married to the Veteran during his Southwest Asia service, also reported that the Veteran was exposed to radiation from assisting in the decontamination of Camp Doha after a fire in the ammunition area, inspecting damaged equipment sent back to the states, and burning gases of the oil rigs that were blown up. See July 2013 Correspondence. Post-service, the Veteran complained of abdominal pain for the last one to two months in June 1999 private treatment records. See also April 1999 private treatment records (noting right upper quadrant pain for one week). At that time, the clinician noted that it was unclear if abdominal pain and biliary obstruction was from pancreatitis or pancreatic cancer. A pancreatic mass was shown on computerized tomography (CT) scan and a biopsy revealed pancreatic cancer with possible hepatic metastasis. In September 1999, the Veteran died at the age of 56. See September 1999 Certificate of Death. The Veteran's immediate cause of death was carcinoma of the pancreas with six months between onset and death. Initially, the Board notes that the contentions in this case center on two types of in-service exposure: to burning fires and fumes in Southwest Asia, and to ionizing radiation during various points in service. On the latter point, a search performed by the U.S. Army Radiation Dosimetry Branch was unable to locate any records for the Veteran among the records of exposure to ionizing radiation. See June 2002 correspondence. Eventually, the U.S. Army Center for Health Promotion and Preventative Medicine (USACHPPM) provided an assessment of radiation exposure for the Veteran in a March 2006 report. The USACHPPM established conservative upper-bound dose estimates for the reported circumstances of service. A separate radiation review was prepared by the Director of Post-9/11 Era Environmental Health Program in November 2020. The report conceded, among others, the Veteran's presence and exposure at the Camp Doha fire when munitions and vehicles containing depleted uranium were still smoldering, and the Veteran transported both U.S. and enemy damaged vehicles. Nonetheless, the report agreed with the radiation dose estimates for the Veteran provided by the USACHPPM, with the sum of 0.109 rem. The report indicate that being in the vicinity of a radiation source does not necessarily mean that a significant exposure occurred. Rather, the external exposure to radiation from depleted uranium would cause a dose that is barely indistinguishable from natural background radiation. As to other exposures during service, the Board finds that there is competent and probative evidence to support exposures to burning fires during the Veteran's service. The Veteran stated that he was exposed to environmental hazards during service in Southwest Asia, to include exposure to burning fires at Camp Doha. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that laypersons are competent to report symptoms they observe through their senses). The Veteran's testimony and the supporting statements are also consistent with the places, types, and circumstances of the Veteran's service. As such, the lay statements are competent and credible of such exposure. As to etiology of the above exposure to service, there are VA opinions which weigh against a nexus between the Veteran's in-service exposure to burning fires and noxious fumes with his pancreatic cancer. On this specific contention, December 2016 and February 2017 VA examiners opined that it is less likely as not that the Veteran's pancreatic cancer was caused by, or due to, his in-service exposure to noxious fumes and burning fires during service. The December 2016 VA examiner noted that smoking is a proposed risk factor for pancreatic cancer and the Veteran has a much more extensive history of exposure to smoking as opposed to burning fires and noxious fumes. However, the examiner incorrectly noted that the Veteran has smoked daily for 20 years or more. See July 1999 letter from the Veteran's clinician (noting a 10 year pack history). The February 2017 VA opinion noted increased risk of pancreatic cancer given the Veteran's age, tobacco use, and focal pancreatitis. Moreover, the February 2017 examiner indicated that the National Institute of Health does not list exposure to noxious fumes and burning fires as causes or risk factors for pancreatic cancer. In addition, in a March 2021 opinion, a VA examiner considered that the Veteran's service was unlikely to have caused his pancreatic cancer. The VA examiner indicated that the Veteran was not unusually young for this type of cancer. Further, the examiner cited the War Related Illness and Injury Study Center noting that studies have not shown consistent and definitive long-term health effects from oil well fire exposure. Moreover, tobacco smoking is a well-studied carcinogen, and has been deemed to be a carcinogenic agent with sufficient evidence to cause pancreatic cancer in humans. Conversely, there are also competent and probative evidence in favor of a nexus between the Veteran's in-service exposure to burning fires, and his pancreatic cancer. In support of her claim, the appellant submitted an October 2021 private opinion authored by a professor emeritus in radiation oncology. The clinician concluded that the Veteran's exposure during active service in Southwest Asia likely caused his pancreatic cancer. In support of this rationale, the clinician explained that the chemical composition released from burning unrefined oil, as was done in Southwest Asia during Desert Storm/Desert Shield, has been proven to include carcinogens such as benzene and particulate matter (PM) 2.5. The clinician went on to note that the Veteran would have been exposed to substantial quantities of benzene and PM 2.5, although he noted the incorrect dates of service in that locations (indicating that the Veteran was at Doha from June 1991 to January 1992 when the Veteran was in Southwest Asia from June 1991 to November 1991). The clinician considered the competing risk factors of a history of smoking, which yields statistically indistinguishable hazard ratios compared to exposures to benzene and PM 2.5 for pancreatic cancer. However, the clinician went on to note that the vast majority of pancreatic cancers occur in non-smokers. Further, studies of benzene and PM 2.5 exposure indicated a high likelihood of developing pancreatic cancer regardless of any other exposures, including smoking. In addition, the clinician indicated that the development of pancreatic cancer approximately 8 years after the exposure is consistent with the known research on benzene and PM 2.5 exposure as the carcinogenic factors in the development of pancreatic cancer. The clinician also noted errors in the analysis provided by the VA opinions. Of note, the opinions are at odds with the epidemiological studies on benzene and PM 2.5 exposure. In addition, the February 2017 examiner incorrectly noted a condition of pancreatitis, as opposed to the Veteran's actual condition of obstructed common bile duct from pancreatic cancer documented in private treatment records. Ultimately, the clinician concluded that the Veteran's benzene and PM 2.5 exposure most likely caused his pancreatic cancer and death. The Board finds the October 2021 opinion to be highly probative. The clinician has the appropriate training, expertise, and knowledge to evaluate the claimed disability. The examiner provided a thorough and cogent rationale for his finding and opinion, which included consideration of the Veteran's reported symptoms, and the clinical history. The opinion provided the Board with a clear description of all relevant data points necessary to evaluate this claim. While there are competent VA opinions to the contrary, they are not entitled to more probative weight. Notably, the December 2016, February 2017 and March 2021 VA opinions are competent and probative. However, the opinions, alone or collectively, are not entitled to more probative weight by nature of their superior competency or reasoning. As the record contains valid and opposing opinions regarding the etiology of the Veteran's pancreatic cancer, the evidence is in equipoise and the benefit of the doubt rule is for application. Applying the benefit of the doubt to this case, the Board finds that the appellant prevails on the existence of a nexus between the Veteran's pancreatic cancer and his in-service exposure. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thus, service connection is warranted for the cause of the Veteran's death. As this represent full grants of the benefits sought, the Board is not required to address alternative theories of entitlement, to include exposure to ionizing radiation and as related to carcinoma in service. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.