Citation Nr: 21076550 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-27 174 DATE: December 27, 2021 ORDER Service connection for a brain tumor is denied. Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in April 2015; the immediate causes of death were listed as cardiorespiratory compromise or arrest, malnutrition, and a WHO Grade III anaplastic astrocytoma. No other significant contributing conditions were identified. 2. In November 2019, the Regional Office (RO) recognized the appellant as an eligible substitute claimant in the appeal. 3. A brain tumor was not shown in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and was not causally or etiologically related to service, to include as due to in-service radiation exposure. 4. At the time of his death, service connection was in effect for a total knee replacement at 30 percent, and chronic sinusitis, degenerative disc disease (DDD) of the lumbar spine, and tinnitus and 10 percent each; he was also assigned a noncompensable rating for bilateral hearing loss. 5. The Veteran's service-connected disorders did not have a material role in causing his death. 6. The causes of the Veteran's death were not etiologically related to service, to include in-service radiation exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a brain tumor, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310, 3.311. 2. The criteria for service connection for cause of the Veteran's death, have not been met. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1959 to June 1979. As a procedural matter, in October 2019 the Board remanded the claim of service connection for the cause of the Veteran's death. The Board further dismissed a claim of service connection for a brain tumor, recognizing that the claim was pending at the time of the Veteran's death but finding that the appellant had not been recognized as a substitute claimant. In November 2019, VA informed the appellant that her request for substitution was granted; as such, the appellant is an eligible substitute claimant for purposes of this appeal. She declined the opportunity to further develop the claim but requested that it be adjudicated. Resolving reasonable doubt in her favor, the Board will proceed accordingly. The case has now been returned to the Board for further appellate action. Service Connection for a Brain Tumor Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within a year of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted presumptively under 38 C.F.R. § 3.309(d) for certain chronic diseases claimed to be attributable to in-service radiation exposure: (i) if a disease listed under 38 C.F.R. §§ 3.309(d) and 3.311 manifests in a radiation-exposed veteran; or (ii) if the VA Under Secretary for Benefits determines that a certain "radiogenic" disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection for a disability claimed to be attributable to in-service radiation exposure with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The appellant has not argued that the Veteran's brain tumor was the product of a service-connected disability; as such, secondary service connection is not for application. However, brain tumors are a chronic disorder under 38 C.F.R. § 3.309(a); therefore, presumptive service connection on the basis of continuity of symptomatology will be considered. Furthermore, the appellant asserted that the Veteran's brain tumor was a result of radiation exposure over the course of his active service; accordingly, presumptive service connection on the basis of in-service radiation exposure will be addressed, along with direct service connection. Turning first to direct service connection, the Veteran was diagnosed with a brain tumor at the time of his death. Specifically, multiple medical treatment notes between January 2015 and the date of his death diagnosed a brain tumor. As such, a disorder current at the time of death has been shown and the first element of service connection has been met. A review of the service treatment records (STRs) reveals that he reported in a May 1979 Report of Medical History that he did not then-presently or previously have a tumor, growth, cyst, or caner. Additionally, he was found to be neurologically normal in multiple examinations over the course of his active service between January 1959 and May 1979. The STRs are otherwise silent for complaints, treatment, or diagnoses of a brain tumor or any related symptoms or conditions. As such, a brain tumor was not noted in his STRs. Therefore, the second element of direct service connection- an in-service incurrence- has not been met and the medical evidence does not support service connection on a direct basis. As to presumptive service connection on the basis of continuity or chronicity of symptomatology, a brain tumor did not manifest in service or to a compensable degree within a year of separation from service. In January 2015, the Veteran and his family reported that he had a sudden onset of memory loss, weakness, an altered gait, and facial trouble. Clinicians further documented a history of right-sided facial weakness, dysarthria, slurred speech, and questionable right lower extremity weakness. The clinicians, noting a markedly abnormal CT scan of his head with extensive right hemisphere changes, diagnosed a WHO Grade III anaplastic astrocytoma with favorable IDH-1 mutation in his brain or cerebellum. Even assuming that he developed symptoms of a brain tumor as early as January 2015, this is well outside the one-year legal presumption for certain chronic disorders such as brain tumors. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran's symptoms began as early as January 2015, over 35 years after his separation from service. Therefore, a brain tumor was not shown until January 2015, with documentation beginning at the same time. In light of the above, the medical evidence does not support service connection based on chronicity or continuity of symptomatology. As to presumptive service connection based on radiation exposure, the appellant argued in a September 2019 statement that service connection was warranted under 38 C.F.R. § 3.309(d), asserting that the Veteran was exposed to radiation and wore a radiation badge as part of his in-service duties. However, the record does not establish that the Veteran was a radiation-exposed veteran under the provisions of 38 C.F.R. § 3.309(d). To this end, the STRs and personnel records do not establish that he participated in a radiation risk activity. Indeed, his DD-214 shows that he did not serve in World War II or its immediate aftermath. Rather, his personnel file documents that he was exposed to radiation on multiple occasions between November 1969 and February 1974. Under 38 C.F.R. § 3.309(d)(3)(ii)(D)(i), radiation risk activities include service where the veteran was monitored for 250 days of such service through the use of dosimetry badges for exposure of the external parts of the veteran's body to radiation. However, the provision requires that such service was performed prior to February 1, 1992, at gas diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee. The record establishes that the Veteran used a dosimetry badge to monitor and document his in-service radiation exposure, and that his exposure occurred prior to February 1, 1992. However, his personnel file documents that his radiation exposure occurred at Naval Air Stations in California and Guam, respectively. Accordingly, the medical evidence does not support presumptive service connection for radiation exposure under 38 C.F.R. § 3.309(d). However, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease became manifest after service, was not manifested to a compensable degree within any applicable presumptive period specified in either 38 C.F.R. § 3.307 or § 3.309, and it is contended that it resulted from exposure to ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include, but may not be limited to, the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). A "radiogenic disease," pursuant to 38 C.F.R. § 3.311, is a defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia (except chronic lymphatic leukemia), thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. Here, the Veteran's brain cancer is considered a radiogenic disease, and it has been asserted that his condition is a result of exposure to radiation while in service. Therefore, a dose estimate is required. 38 C.F.R. § 3.311(a)(1). As such, the Veteran's claim was provided to the VA Undersecretary for Benefits to determine if his claimed brain tumors resulted from in-service radiation exposure. To this end, in August 2016, the Undersecretary acknowledged that the Veteran had been exposed to ionizing radiation and noted that the Naval Dosimetry Center found that the doses of radiation he received were measured at 0.002 REM. The Undersecretary noted that the Health Physics Society found substantial and convincing scientific evidence for health risks following high dose exposures but stated that the health effects of exposures below 5 to 10 REM were either too small to be observed or nonexistent. As the Veteran's radiation exposure was measured at less than 1 REM, the Undersecretary determined that it was not likely that his brain tumor was caused by in-service exposure to ionizing radiation. Accordingly, the evidence of record does not support presumptive service connection based on exposure to ionizing radiation under 38 C.F.R. § 3.311. To the extent that direct causation is alleged, in May 2016, a private clinician recounted that the Veteran was diagnosed with grade III anaplastic astrocytoma. The clinician noted that prior radiation exposure was a risk factor for the development of brain tumors but did not opine as to whether it was at least as likely as not that his brain tumor was the direct result of any prior radiation exposure. Accordingly, the May 2016 doctor letter is assigned lesser probative value as to a nexus between direct radiation exposure and the Veteran's brain tumor, and, as such, the weight of the medical evidence does not support service connection on a direct causation basis. In sum, while the Veteran was diagnosed with a brain tumor at the time of his death, the evidence does not establish that his brain tumor occurred in service, was present within one year of separation from service, or was continuous since service. Further, the evidence does not establish a nexus between the Veteran's brain tumor and his in-service radiation exposure. Accordingly, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeal is denied as to the appellant's claim of service connection for a brain tumor. Service Connection for the Cause of the Veteran's Death 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 aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be considered a principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause, or be etiologically related to the cause of death. For the disability to constitute a contributory cause, it must have substantially or materially contributed to death. It is not sufficient to show that it casually shared in producing death, but rather a causal connection must be shown. 38 U.S.C. §§ 1310; 38 C.F.R. § 3.312. A contributory cause of death is inherently one not related to the principal cause. It must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had a "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The Veteran died in April 2015 at the age of 73. His immediate causes of death were cardiorespiratory compromise or arrest, malnutrition, and a grade III anaplastic astrocytoma. His death certificate further found that there were no other significant conditions that contributed to his death. At the time of his death, he was service connected for a right knee disability, sinusitis, a back disability, tinnitus, and hearing loss. The appellant has not specifically argued and/or asserted that the Veteran's death stemmed from any of his already service-connected disabilities, noted above. Moreover, the medical evidence does not support a finding that any of his service-connected disabilities, to include for his knee, back, sinuses, tinnitus, and/or hearing loss, contributed in any way to his death. As such, the Board must find that the preponderance of evidence is against any finding that the Veteran's service-connected disabilities caused his death. Instead, the appellant has argued that the cause of the Veteran's death stemmed from his in-service radiation exposure. The Veteran's personnel file documents that he was occupationally exposed to ionizing radiation from gamma and x-rays between November 1969 and February 1974. However, as discussed above, his exposure did not constitute a radiation risk activity for purposes of presumptive service connection under 38 C.F.R. § 3.309(d), and the record did not otherwise document a direct causal relationship between his brain tumor and his radiation exposure. Likewise, with any claimed direct connection to service, discussions above regarding the development of the Veteran's tumor decades after separation from service does not support any finding of a direct connection to service. Accordingly, the preponderance of the competent medical evidence does not support a finding that the Veteran's cause of death is based on any in-service injury or incurrence, to include radiation exposure. In sum, after careful review, the weight of the evidence does not establish that the Veteran's service-connected disabilities contributed substantially or materially to his causes of death or that the causes of his death were otherwise related to service, to include in-service radiation exposure. The Board has considered lay statements submitted by the Veteran and appellant concerning the etiology of his brain tumor and of the causes of his death. While lay witnesses are competent to report their observations because this requires only personal knowledge as it comes to them through their senses, they are not competent to provide a complex medical opinion such as the etiology of any current disorder or determining causes of death due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who rendered pertinent opinions during the current appeal and by service and medical treatment records obtained and associated with the claims file. The medical findings (as provided in the medical opinions and clinical records) directly address the criteria under which this issue is evaluated. Accordingly, the Board attaches greater probative weight to the clinical findings than to the lay evidence and statements that have been submitted. Finally, the appellant has not raised any other outstanding issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.