Citation Nr: 21070450
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 17-13 338
DATE: November 24, 2021

ORDER

Service connection for the cause of the Veteran's death is granted.

FINDING OF FACT

1. The Veteran died in October 2015 of non-Hodgkin's lymphoma. 

2. It is at least as likely as not that the Veteran's non-Hodgkin's lymphoma was caused by his active-duty service. 

CONCLUSION OF LAW

The criteria for 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. §§ 3.303, 3.304, 3.310, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1977 to September 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died on October [REDACTED], 2015. The appellant is the Veteran's surviving spouse. 

This claim was previously before the Board in January 2019, when it was remanded for further development. 

Entitlement to service connection for the cause of the Veteran's death

The appellant has submitted a claim for DIC benefits, specifically asserting that the Veteran's death was attributable to his exposure to weapons cleaning solvents during his active-duty service. The Board finds that service connection for the cause of the Veteran's death is warranted.

Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 C.F.R. § 3.5. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312.

Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

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). A service-connected disability will be considered as the principal, or 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. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; 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)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

The post-service treatment records document that that the Veteran was diagnosed with non-Hodgkin's lymphoma in September 2013, nearly nine years after service. 

The Veteran's service treatment records are silent for any symptoms, diagnoses or conditions related to non-Hodgkin's lymphoma. However, following the development the Board directed be conducted on remand, VA conceded the Veteran's exposure to certain weapons cleaning solvents in-service.

Over the course of the appeal, the appellant submitted private letters/opinions dated November 2015, May 2016, and three opinions dated June 2016. The November 2015 letter, from Dr. A.B., stated that chemical exposure, like chemical solvents used to clean weapons in the U.S. Air Force, has been linked to non-Hodgkin's lymphoma. The Veteran's former treating physician, Dr. M.C., submitted a May 2016 private opinion stating that it is at least as likely as not that the Veteran developed non-Hodgkin's lymphoma as a result of in-service exposure to chemical solvents. While he did not develop his cancer within a year from service, Dr. M.C. notes, it is "well documented" that there is a latent period of years between exposure and development of disease for lymphoma. 

Next, the Veteran's last treating physician, Dr. M.G., submitted a letter in June 2016. Dr. M.G. stated that "[t]here is a very reasonable possibility" that his chemical exposure in-service contributed to or caused his non-Hodgkin's lymphoma. In support, Dr. M.G. referenced a journal article in the Occupational and Environmental Medicine Journal, which indicates exposure to cleaning chemicals increases the risk of developing lymphomas. Also, in June 2016, Dr. P.B. submitted an opinion stating that the Veteran's development of non-Hodgkin's lymphoma was plausibly related to his active-duty service. In support, he cited 15 medical journal articles showing an increased rate of lymphoma among military veterans and an increased risk of lymphoma among those exposed to trichloroethylene, a chemical solvent the appellant asserts the Veteran was exposed to in-service. 

In August 2021, a VA opinion was provided as to whether the Veteran's cause of death was related to service. The examiner concluded against service connection, opining that "the VA has not provided any medical rationale correlating exposure to weapon cleaning solvents with the development of lymphoma". The Board finds no probative value in this opinion, as it is conclusory and relies on whether there is a presumption, under VA regulation, dealing with chemical cleaning solvent exposure. In contrast to this opinion, the appellant has provided several opinions and letters from the Veteran's treating physicians that indicate a connection between his active-duty service and his lymphoma. 

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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, in light of the evidence discussed above, the Board finds that a state of equipoise, at the least, has been reached regarding the question of whether the Veteran's non-Hodgkin's lymphoma, the immediate and primary cause of his death, is related to service. Thus, resolving all reasonable doubt in the appellant's favor, the Board concludes that the criteria for service connection for the cause of the Veteran's death are met, and the claim is granted.

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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.

 

 

L. STEPANICK

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald