Citation Nr: 21074139 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-39 821 DATE: December 14, 2021 ORDER Entitlement to service connection for the cause of the Decedent's death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Decedent died in October 2006 from an immediate cause of death of cardiopulmonary arrest due to end stage stomach cancer. 2. A service-connected disability was neither the principal nor contributory cause of death. 3. The Veteran was not was continuously rated totally disabled for a period of 10 or more years immediately preceding his death. CONCLUSIONS OF LAW 1. The requirements for service connection for the cause of the Decedent's death have not been met. 38 U.S.C. §§ 1310; 38 C.F.R. §§ 3.102, 3.159, 3.312, 3.1600. 2. The requirements for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 1310, 5107; 38 C.F.R. §§ 3.102, 3.22 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Decedent served on active duty for training from October 1969 to February 1970, with an additional period of Army Reserve service from February 1970 to May 1975. He died in October 2006. The appellant is his widow. In December 2017, she testified at a videoconference hearing before the Board. A transcript of the hearing is of record. In May 2018, the Board remanded this appeal for further development. In January 2019, the Board denied service connection for the Decedent's cause of death and entitlement to DIC benefits. In May 2019, the appellant filed a Motion for Reconsideration of the January 2019 Board decision denying service connection for cause of death and DIC benefits. Later in May 2019, the appellant submitted an addendum to the Motion for Reconsideration. The Motion for Reconsideration was denied in September 2019. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court), and in a November 2020 Order, the Court granted a Joint Motion for Remand (JMR) vacating that decision and remanding it to the Board. Consistent with the Court's November 2020 Order, the Board remanded the matter to obtain a VA addendum medical opinion in June 2021. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for the cause of the Decedent's death. The appellant has set forth several arguments regarding her claim seeking service connection for the Decedent's cause of death. The appellant contends that her late husband's stomach cancer was due to chemical exposure at Chanute Air Force Base in Illinois including Agent Orange, asbestos, firefighting foam, burn pits, mold, fuels, and dioxins. Additionally, the appellant contends that the Decedent's smoking history did not play a large role in his stomach cancer as the Decedent quit smoking in 2001, approximately 5 years before his diagnosis of stomach cancer. Further, the appellant has submitted numerous medical treatises demonstrating toxic chemicals and hazardous waste at Chanute Air Force Base, health issues of firefighters, and a claim of a fellow Veteran, who received disability compensation as a result of chemical exposure from Chanute Air Force Base. VA death 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, 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or was aggravated by active service and that it was the principal or contributory cause of death. 38 C.F.R. § 3.312. To constitute the principal cause of death, a service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. To be a contributory cause of death, the service-connected disability must have contributed substantially or materially to cause death; combined to cause death; or aided to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death; rather, it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312 (b), (c). If the evidence shows that the Veteran died of a disorder that was ultimately related to his military service, the regulations do not require a service-connected disability to be the primary cause of death, only to be "etiologically related" or "causally connected." 38 U.S.C.§ 1310; 38 C.F.R. § 3.312. Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999). Special rules apply to National Guard and Reserve service. The first step in any claim for veterans' benefits is whether the claimant is considered a "veteran" as defined under VA law. Service in the Reserves, even during period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA), without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Thus, to establish "veteran" status with respect to service in the Army Reserves and eligibility for service connection, the record must show that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. Alternatively, service connection can be granted for an injury (but not a disease) incurred during INACDUTRA service. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). As the Decedent was neither service connected for any disabilities nor did he have any periods of active service, he never achieved status as a "veteran" prior to death. However, his active duty for training/inactive duty training can form the basis for a grant of service connection, and thus support service connection for the cause of death, if the evidence supports such a grant. At the time of death, the Decedent had been diagnosed with stomach cancer but was not service connected for any disability. He did not make any claim for any stomach related disabilities during his lifetime. The Decedent's death certificate reflects that he died in October 2006 at the age of 60 and that his immediate cause of death was a cardiopulmonary arrest with a listed underlying cause of stomach cancer. The appellant contends that the Decedent's terminal stomach cancer was caused by his hazardous exposures during service. At her December 2017 hearing, the appellant asserted that the Decedent's training as a firefighter while in active duty for training exposed him to various fire suppressant chemicals, which caused his stomach cancer. The Board notes that throughout the appeal, the appellant's claims of service connection were developed under the theory of the Decedent's in-service exposure to herbicides. The Board also notes the record contains a May 2014 formal finding of lack of evidence that the Decedent was exposed to Agent Orange or served in Vietnam. At the December 2017 hearing, the appellant's representative stated that the theory of service connection based on herbicide exposure was made in error, and the appellant wished to pursue her claims on the theory of service connection for cause of death as due to chemicals related to fire suppressants. 38 C.F.R. §§ 20.201(a)(4) and 20.202; see also AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may limit his appeal to particular issues if he expresses a clear intent to do so). Given the representative's clarification of the basis for the claim, and the lack of evidence of herbicide exposure, the Board will not further consider entitlement to DIC benefits or entitlement to service connection for cause of death on the basis of exposure to herbicides. Medical evidence of record includes post-service treatment records dated in May 2006, which document the Decedent's initial diagnosis of adenocarcinoma of the stomach. There is no service treatment record which reflects any treatment or diagnosis of stomach cancer while in active service, and there is no post-service medical evidence which reflects an earlier diagnosis or provides an etiological opinion for the Decedent's stomach cancer. Military personnel records reflect the Decedent participated in fire suppression training for sixteen days at Chanute Air Force Base in June 1974. Therefore, exposure to fire suppressant chemicals for this time period is conceded as consistent with the circumstances of his service. Thus, there is competent evidence that the Veteran has suffered an injury or experience during active service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999). The issue before the Board now remains whether the Veteran's cause of death being stomach cancer is etiologically related to exposure to firefighting suppressant chemicals during service. Also included in the record are several medical opinions addressing whether the Decedent's stomach cancer was caused by his active military service. A September 2014 VA medical opinion opined that the Decedent's exposure to fire suppressant chemicals in-service was less likely than not the cause of his fatal stomach cancer. As rationale, the examiner stated that there were several noted risk factors for stomach cancer, and while the exact cause of the Decedent's stomach cancer would never be known, it was highly unlikely that sixteen days of exposure to fire suppressants in active service could have caused stomach cancer more than three decades after active separation. An August 2018 VA medical opinion stated that neither herbicides nor fire suppressant chemicals were listed as known carcinogens for stomach cancer according to the International Agency for Research on Cancer (IARC). The examiner also noted the Decedent was a smoker for thirty to forty years, which is listed by IARC as a risk factor for stomach cancer. Finally, the examiner opined that the Decedent had no diagnosis or treatment for stomach cancer until several decades after his active service, and as stomach cancer is severe and sudden in onset, it was not likely to have been present for decades after service without being diagnosed. The examiner concluded that there was insufficient support of etiology of stomach cancer by herbicides or fire suppressant chemicals in medical literature; therefore, it was less likely that the Decedent's cause of death was related to active service. A January 2018 statement from a private physician stated simply "it is as likely as not that patients [sic] military service caused the cancer." No additional rationale was provided. VA was asked to consider two additional articles in an addendum opinion. See Exhibit I-EPA Article, "Basic Information on PFAS" and Exhibit J-Excerpt from Medical Report, "Health Risks and Occupation as a Firefighter." Exhibit I discusses the chemical, PFAS, where it can be found and how an individual may be exposed. The appellant underlined and noted the paragraph discussing drinking water and the possibility of PFAS being used in firefighting. Exhibit J is a report prepared by the VA in the Commonwealth of Australia discussing the health risks associated with firefighting. Exhibit J is only one page of the report and not the full study. The appellant noted a specific paragraph stating that stomach cancer elevated in Beaumont, Australia. In the August 2021 addendum opinion, the VA examiner agreed with both the September 2014 and August 2018 opinions determining that the Decedent's cause of death was not service connected. The VA examiner reviewed the two additional articles pursuant to the Board's remand. In turn, the VA examiner did not find probative value in either article. The examiner noted a lack of evidence supporting the Decedent's occupation as a firefighter. The Decedent performed firefighting duties while in the Army Reserves but maintained a fulltime, civilian occupation as a land surveyor. Furthermore, the VA examiner noted the irrelevance of an article studying firefighting in Australia. The VA examiner concluded that Australia is significantly far from Illinois and therefore is indeterminate of the environmental exposures at Chanute Air Force Base. Additionally, the VA examiner thoroughly reviewed the medical record including private medical records and noted the lack of rationale from a service connection opinion. The VA examiner stated the medically known causes and recognized risk factors for stomach cancer include tobacco smoking. The Decedent has an estimated thirty-to-forty-year smoking history in which the VA examiner noted the Decedent smoked up to one pack per day prior to quitting. The VA examiner considered the health benefits of the Decedent quitting smoking five years prior to his cancer diagnosis but concluded that the Decedent most likely had already done irreversible damage. The VA examiner opined that the Decedent's exposure to firefighting suppressants would not be significant nor are causes of stomach cancer per the International Agency for Research on Cancer (IARC). The August 2021 VA examiner opinion is consistent with prior opinions from September 2014 and August 2018. The appellant submitted additional medical treatises or articles received in November 2018. Exhibits C, L, and M discuss Chanute Air Force Base. See Exhibit C "Site Summary November 2013;" Exhibit L "Chanute AFB by Civilian Exposure;" and Exhibit M "Chanute Air Force Base The Air Force's Legacy of Lies in the Heartland." Exhibit E discusses smoking and the benefits of quitting. Exhibit F, similar to Exhibit J, discuss health and safety of firefighters. See Exhibit F "NIOSH study of US Firefighters." Exhibit G discusses long-term impacts of burn pits. See Exhibit G "Burn Pit Diseases and Conditions." Exhibit H, similar to Exhibit I, states that PFAS exposure creates an increased risk of cancer. See Exhibit H "PFAS Health Effects." Exhibit K and N discusses the risks for cancer, which include tobacco. See Exhibit K "National Cancer Institute: Risk Factors for Cancer" and Exhibit N "Challenge to BVA on Toxic Chemical Associations to Stomach Cancer in out Vietnam Veterans." The August 2021 VA examiner considered each article. The examiner did not determine Exhibits C, L, and M to be relevant based on the Decedent's 16 days at Chanute Air Force Base. Also, the examiner noted Civilian Exposure, the source of Exhibit L, is an inflammatory platform not based on scientific evidence. The VA examiner concluded Exhibit F lacked consideration based on the Decedent's smoking history in the record. Specifically, oncology records stated that the Decedent smoked one pack of cigarettes per day prior to quitting, and the damage done was likely irreversible. The examiner noted that tobacco is a known cancer-causing carcinogen. Finally, the VA examiner concluded that the Decedent did not have an occupation as a firefighter. But instead, the Decedent partook in firefighting activities with the Army Reserves while maintaining a fulltime, civilian occupation as a land surveyor. In summary, the August 2021 VA examiner stated, "with a high degree of medical certainty that the veteran's exposure to chemicals while at fire suppression training or the [c]laimed Agent Orange exposure or any other acute illnesses in the service are less likely as not (less than 50 percent probability) the cause or substantially contribute to the [V]eteran's death." The Board finds the August 2021 VA examiner's opinion is well-reasoned and thorough, having considered the entire record, including service treatment records as well as the Decedent's medical history, and provides specific medical evidence for the opinions rendered. The Board finds that the VA examiner's opinion is the most probative evidence of the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In contrast, the January 2018 private medical opinion, the only medical opinion favorable to the claim, is speculative in nature and unsupported by any rationale, the Board finds that the VA opinion outweighs the private medical opinion. Id. Although the Decedent is presumed to have been exposed to fire suppressant chemicals, the probative medical evidence of record weighs against a finding of a nexus between the Decedent's limited exposure to fire suppressant chemicals and his diagnosed stomach cancer, which caused his death. The Board has considered the lay statements of the appellant along with the copious number of articles submitted. While lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this case, the question at issue is clearly one requiring medical expertise and falls outside of the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n. 4 (Fed. Cir. 2007). To the extent that the appellant alleges that the Decedent's service contributed to his immediate causes of death, while she is competent to describe the symptoms the Veteran experienced, she is not competent to render a nexus opinion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). With regard to the copious medical treatise information, the Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). It can provide important support when combined with an opinion of a medical professional if the article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based on objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Generic medical literature, which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to establish a nexus. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The exception to this competency rule is when the medical treatise information, where "standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin, 11 Vet. App. 509. In this case, the medical treatises evidence submitted by the appellant is not accompanied by a medical opinion that purports to show that the Decedent's active duty for training caused his terminal stomach cancer. In this case there is no supporting medical evidence that the general principles cited in the articles relate to the specific situation of the Decedent in this case. See Mattern v. West, 12 Vet. App. 222, 228 (1999). In addition to medical treatise evidence, the appellant also submitted prior Board decisions related to the environmental conditions and hazardous exposures at Chanute Air Force Base. Previous decisions are not binding on the Board unless the decisions specifically addressed this particular Decedent's case. See 38 C.F.R. § 20.1303 (2016); McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). As the decisions submitted by the appellant involved separate and distinct fact patterns and evidence unrelated to the Veteran, they are afforded little probative value. In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the appellant's claim of service connection for the cause of the Decedent's death. The Decedent's death due to stomach cancer has not been shown to be at least as likely as not related to his military service or related to a disability that may be presumptively service connected. As the evidence in this case is not in equipoise, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for the cause of the Decedent's death is not warranted. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318 Under 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse and to the children of a deceased Veteran "in the same manner as if the death were service-connected." A "deceased Veteran" for purposes of this provision is a Veteran who dies not as the result of his/her own willful misconduct, and who was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability rated totally disabling. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). In this case, the Decedent was not service-connected for any disorder at the time of his death. Consequently, the appellant is not entitled to DIC benefits pursuant to 38 U.S.C. § 1318. (Continued on the next page) The governing regulations do not provide for the assignment of VA compensation based on equity. While sympathetic to the appellant, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.§§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.