Citation Nr: 21075222 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-22 439 DATE: December 17, 2021 ORDER Entitlement to service connection for abdominal aorta aneurysm is granted. Entitlement to service connection for a heart condition is granted. Entitlement to service connection for lung cancer is granted. Entitlement to service connection for the Veteran's cause of death is granted. FINDINGS OF FACT 1. The Veteran's service-connected back disability at least as likely as not caused him to use tobacco products after service as competent medical evidence indicates the Veteran smoked cigarettes to ameliorate the pain caused by his service-connected back disability, as well as the effects of an acquired psychiatric disorder that developed proximately due to his service-connected back disability. 2. The use of tobacco products was at least as likely as not a substantial factor in causing the Veteran's claimed abdominal aorta aneurysm, a heart condition, and lung cancer. 3. It is at least as likely as not the Veteran's claimed abdominal aorta aneurysm, heart condition, and lung cancer would not have occurred but for his use of tobacco products. 4. Lung cancer was at least as likely as not a principal cause of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for service connection for abdominal aorta aneurysm have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a heart condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for lung cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C. § 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1952 to April 1953. He died in January 2014. The Appellant is his surviving spouse. She seeks service connection for the Veteran's cause of death and has also been substituted for the Veteran for the purpose of processing the service connection claims that were pending at the time of his death to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. These matters were most recently before the Board of Veterans' Appeals (Board) in June 2021, when they were remanded for further development, which will be discussed in more detail, as necessary below. 1. Entitlement to service connection for abdominal aorta aneurysm is granted. 2. Entitlement to service connection for a heart condition is granted. 3. Entitlement to service connection for lung cancer is granted. Prior to his death, the Veteran filed service connection claims for abdominal aorta aneurysm, a heart condition, and lung cancer. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In accordance with these principles, service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record conclusively establishes a current disability with respect to the service connection claims for abdominal aorta aneurysm, a heart condition, and lung cancer. The Appellant has asserted the claimed disabilities were the result of the Veteran's cigarette smoking, which she claims was caused by his service-connected back disability, as well as a resulting acquired psychiatric disorder that developed proximately due to his service-connected back disability. Regarding the Veteran's cigarette smoking, the Board notes that for claims filed after June 9, 1998, the law generally prohibits service connection for disabilities attributable to the use of tobacco products in service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). Tobacco products mean cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). Yet, in October 2003, VA's Office of General Counsel explained that the legal bar to service connection for a disability attributable to tobacco use in service does not bar a finding of secondary service connection for a disability related to the use of tobacco products after service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the use of tobacco products during service. VAOPGCPREC 6-2003 (October 28, 2003). In other words, secondary service connection may be established for disability related to post-service tobacco use that is the result of or has been aggravated by a service-connected disability unrelated to tobacco use. The General Counsel further explained that VA adjudicators must resolve (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. VAOPGCPREC 6-2003 (October 28, 2003). In June 2021, the Board remanded the issues on appeal because the previous opinions of record failed to adequately address the contentions raised by the Appellant; thereafter, the Agency of Original Jurisdiction obtained a new opinion in accordance with the Board's remand directives. The author of the post-remand opinion, a June 2021 VA examiner, concluded that the Veteran's service-connected back disability at least as likely not caused the Veteran to use tobacco products as both a coping mechanism for chronic pain resulting from his service-connected back disability, as well as the effects of an acquired psychiatric disorder that was proximately due to his service-connected back disability, noting the "relevant medical literature" cited by the Appellant's representative to support her conclusion in this regard. A previous VA examiner in November 2020 had explicitly conceded the Veteran's abdominal aorta aneurysm and heart condition would not have developed but for his use of tobacco products. Although the November 2020 VA examiner did not explicitly concede the Veteran's lung cancer would not have occurred but for his use of tobacco products, the November 2020 VA examiner noted lung cancer caused the Veteran's death and explained 80 to 90 percent of lung cancer deaths in the United States are attributable to cigarette smoking. The Board finds this rationale is sufficient to support a finding that the use of tobacco products was at least as likely as not a substantial factor in causing the Veteran's lung cancer, as well as finding that the Veteran's lung cancer would not have occurred but for his use of tobacco products, given competent evidence indicates well over 50 percent of lung cancer cases like the Veteran's are attributable to cigarette smoking. As a result, when applying the "at least as likely as not" standard, the evidence leads to affirmative answers to the questions outlined by VA's Office of General Counsel in VAOPGCPREC 6-2003. Resolving reasonable doubt in favor of the claimant, the Board finds service connection for abdominal aorta aneurysm, a heart condition, and lung cancer is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). 4. Entitlement to service connection for the Veteran's cause of death is granted. To warrant service connection for the cause of death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A 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 thereto. 38 C.F.R. § 3.312(b). A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Here, the Veteran's death certificate and the other competent medical evidence of record indicates lung cancer was a principal cause of his death. As previously discussed, the Board finds the criteria for service connection for lung cancer have been met in this case. Accordingly, service connection of the Veteran's cause of death is also warranted. L. S. Kyle Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.