Citation Nr: 21076848 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-59 287 DATE: December 28, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran's death certificate shows that he died in January 2014. The cause of death was listed as metastatic brain cancer. 2. Evidence of record shows that the Veteran had a primary diagnosis of lung cancer that metastasized to the brain. 3. The weight of the evidence is against finding the Veteran's cancer to be related to service, to include herbicide exposure, radiation exposure, environmental hazard exposure, or to a directly service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from February 1974 to June 1977 and then served on active duty in the United States Army from January 1978 to November 1993. The Veteran passed away in January 2014, and the appellant before the Board of Veterans' Appeals (Board) is his surviving spouse. The matter comes before the Board from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board remanded the issue for association of relevant records, further development, and a VA medical opinion. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in May 2020 and was remanded again to associate the Veteran's service personnel records (SPRs) with the claims file, afford the appellant an opportunity to provide more information, and to obtain an addendum opinion from a VA examiner on whether the Veteran's cause of death is at least as likely as not related to conceded exposure to microwave radiation in service or exposure to environmental hazards during service in the Persian Gulf. The Board is satisfied that there was substantial compliance with its remand orders and is prepared to fully adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for cause of the Veteran's death To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially. 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 U.S.C. § 1310; 38 C.F.R. § 3.312. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 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). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the presumption does not apply because there is no medical evidence that the Veteran manifested lung cancer or metastatic brain cancer to a compensable degree within one year of service discharge in November 1993. See 38 C.F.R. §§ 3.307, 3.309. a. Herbicide exposure Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). However, while the Veteran served in the Air Force during this time frame (February 1974 to November 1977), the service personnel records do not show that he served in the Republic of Vietnam during this time frame. Further, there are no records in the claims file to suggest that the Veteran handled or encountered any herbicide agents during his active-duty service. The Veteran's full service personnel records and service treatment records have been associated with the claims file. The records have been thoroughly and fully reviewed by the Board, spanning from 1974 when the Veteran entered service in the Air Force, to November 1993, when he discharged from the Army. No service record shows any deployment or time in the Republic of Vietnam nor any MOS that would cause the Veteran to have encountered or handled any herbicide agent. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). While respiratory cancer is listed under 38 C.F.R. § 3.309(e) as a disease that may be associated with herbicide agent exposure, the record simply does not offer any evidence that the Veteran had any contact or exposure to herbicide agents at any point during his time on active duty, in either the Air Force or Army. Therefore, the appellant's theory of entitlement that the Veteran's cancer was caused by in-service herbicide agent exposure does not afford a finding of service connection for the Veteran's cause of death. b. Radiation exposure 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 presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. 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) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma. Effective March 26, 2002, cancers of the bone, brain, colon, lung, and ovary were added to the list of diseases specific to radiation-exposed Veterans set forth at 38 C.F.R. § 3.309(d). See 67 Fed. Reg. 3612-01 (Jan. 25, 2002); see also 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) 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 shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311 (b)(2). Section 3.311(b)(5) requires that colon cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). Under the special development procedures in § 3.311(a), 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, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to a 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). Here, while VA has conceded the Veteran's exposure to radiation in service, due to his MOS as a microwave operator and repairer, the evidence does not support a finding that the Veteran's cancer developed due to radiation exposure. The February 2020 medical opinion noted the Veteran's lay statements that he was exposed to microwave radiation but was unable to verify the credibility of the statement. The examiner ultimately stated that it could not be established how much exposure the Veteran received to radiation in the military (if any), and concluded that the evidence supports a finding that it is less than likely that the Veteran's radiation exposure is etiologically related to the lung cancer and brain cancer that led to his death. A June 2021 VA addendum opinion was afforded to the Veteran's records. The examiner was tasked by the May 2020 Board remand to opine whether the Veteran's cause of death was at least as likely as not related to service, to include his conceded exposure to microwave radiation. The examiner opined that the condition claimed was less likely than not incurred in or caused by the in-service injury, event, or illness. By way of rationale, the examiner went through the Veteran's history, reporting that he was diagnosed with brain cancer in January 2014 and was diagnosed with terminal lung cancer with metastasis to the brain a few days later. The examiner stated that the cause of death was not due to or the result of conceded exposure to microwave radiation. The examiner stated that a thorough review of the medical literature remains silent as to any causation between microwave radiation and lung or brain cancer. The examiner discussed the unique differences between low and high frequency radiation that is referred to as the electromagnetic spectrum. High energy radiation is a form of ionizing radiation which means it has enough energy to remove an electron from an atom, which can damage DNA inside of cells and sometimes leads to cancer. However, radiofrequency radiation (which includes radio waves and microwaves) is at the low energy of the electromagnetic spectrum and is a type of non-ionizing radiation which does not have enough energy to remove electrons from atoms. The examiner continued by stating that it is important to note the difference between the Veteran's primary diagnosis of lung cancer and the subsequent development of brain cancer leading to his death in evaluating the remand question and to provide an addendum to the previously completed opinion in 2020. Specifically, the examiner noted that the Veteran's cause of death, although noted as brain cancer per the death certificate, in fact developed due to his lung cancer. Stated another way, the brain cancer that ultimately led to his death was secondary or metastasized from the lungs. The examiner remarked that cigarette smoking has a strong association with lung cancer and far outweighs any consideration for microwave radiation that is low on the electromagnetic spectrum and only remotely considered as potentially causing brain cancer. However, the fact that the Veteran's brain cancer was secondary to lung cancer is a significant factor in determining the underlying etiology leading to the Veteran's cancer. The examiner noted that there is no association of microwave frequency and lung cancer known or recognized in any of the medical literature. The electromagnetic spectrum of high frequency that may cause secondary cancers when used to treat malignancies in the chest is not relevant when addressing the possibility of the Veteran's exposure to microwave radiation as causative for the lung cancer metastasizing to the brain, as the Veteran did not receive radiation therapy to the chest or lungs. Upon consideration of the above, the Board concludes, first, that while the Veteran did have both brain cancer and lung cancer, which are listed under 38 C.F.R. § 3.309(d)(2) for presumptive service connection for radiation exposed veterans, the evidence of record fails to show that the Veteran qualified as a radiation exposed veteran as defined in 38 C.F.R. § 3.309(d)(3). The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). Radiation risk activity means: (A) onsite participation in a test involving the atmospheric detonation of a nuclear device; (B) The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; (C) internment as a prisoner of war in Japan (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 occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (D) service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee; or (E) service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. The Veteran at hand did not serve in any of these locations or capacities. Therefore, he does not qualify as a radiation-exposed Veteran and the appellant is unable to recover under this theory of radiation exposure. The alternative way that service connection may be grantee is by using 38 C.F.R. § 3.311. If the Veteran does not qualify as a radiation exposed veteran, as is the case here, exposure to radiation can be shown by showing that the Veteran suffered from a radiogenic disease and that they had contact with ionizing radiation during service. The Board concludes, however, that this theory of entitlement also fails, as no available medical records, service treatment records, or service personnel records make any reference to the Veteran being exposed to ionizing radiation. As the June 2021 addendum opinion reports, the Veteran was specifically exposed to non-ionizing radiation in his MOS as a microwave operator and repairer. Thus, the Board must conclude that the Veteran's brain cancer and lung cancer were not shown to have been caused by in-service radiation exposure, and entitlement to service connection for the Veteran's cause of death must be denied on this basis as well. c. Environmental hazard exposure The appellant contends in the alternative that she is due entitlement to service connection for the Veteran's cause of death due to environmental hazards the Veteran was exposed to while serving during the Persian Gulf War. For Persian Gulf War veterans, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia Theater of operations, or to a degree of 10 percent or more not later than December 31, 2026 and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The three types of qualifying chronic disabilities are: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Here, VA noted that the Veteran did deploy to the Southwest Asia Theater of operations and thus was presumed to be exposed to environmental hazards. In June 1995, the Veteran requested service connection for Persian Gulf Syndrome that included a chronic lung condition. In July 1995, the Veteran was afforded a VA examination. The Veteran reported that he was experiencing shortness of breath, specifically when jogging one to two miles. It is noted on the exam that the Veteran has had shortness of breath issues since his time in the Persian Gulf. However, the Veteran was also noted to be an avid smoker, smoking approximately one and a half packs of cigarettes a day. He used to be smoking two to three packs a day. The examination also noted that the Veteran suffered from obesity. The examiner concluded that the Veteran's shortness of breath was likely secondary to his deconditioning and overweight status. The examiner also reported a chest x-ray that was performed in February 1995 which showed the chest and lungs to be normal. Finally, pulmonary function tests were performed on the examination and despite the Veteran being a smoker, all of these tests showed the Veteran's pulmonary system to be normal. In July 1997, VA denied entitlement to service connection for an undiagnosed illness manifested by a respiratory condition. The rating decision noted that service medical records showed no record of complaints or treatment for a chronic respiratory condition in service or within one year after discharge. The RO found there was no objective evidence of any respiratory condition or disability. The record then goes silent as to any respiratory condition until the Veteran received a diagnosis of metastasized brain cancer and lung cancer in 2014. This constitutes a diagnosis, such that it does not fall within the category for an undiagnosed illness or symptoms of medically unexplained chronic multisymptom illness (MUCMI). In February 2020, a VA medical opinion was obtained. The examiner reported that the Veteran had a complicated and complex medical history but ultimately stated that the Veteran's smoking history likely caused his lung cancer that metastasized to the brain. Along with the fact that the Veteran was an avid smoker, the examiner noted that the Veteran's chest x-ray and pulmonary function tests were all normal shortly after his return from the Persian Gulf, where he was presumably exposed to environmental hazards. The examiner found this evidence to support the opinion that the Veteran's cancer was due to his smoking rather than any exposure to environmental hazards in the Persian Gulf, due to the fact that the lung cancer only developed much later in life. In June 2021, the VA addendum opinion noted all the same medical history of the Veteran, finding his lungs and respiratory system to be within normal limits after returning from service in the Southwest Asia Theater. Along with the fact that no respiratory condition was noted after the Veteran's return from his overseas service, the examiner noted that the claims file offers ample evidence of the Veteran's smoking. The June 2021 examiner specifically notes that the Veteran would smoke two to three packs a day. The opinion reports that the primary risk factor for the development of lung cancer is cigarette smoking, which is estimated to account for 90 percent of all lung cancers according to the American Cancer Society. The risk of developing lung cancer for a current smoker of one pack per day for 40 years is approximately 20 times that of someone who has never smoked. Therefore, the examiner opined that it is less likely than not that the Veteran's death was a result of or proximately due to any exposure to environmental hazards in the Persian Gulf, and more likely that his death resulted from lung cancer with metastatic brain cancer, diagnosed decades following separation from military service that developed as a result of cigarette smoking, a known carcinogen, and a factor recognized as the leading cause of lung cancer. All this evidence, taken together, shows that the Veteran did not have any diagnosis of an undiagnosed or medically unexplained illness of the respiratory system after his service in the Persian Gulf. Additionally, the Veteran did receive a diagnosis of lung cancer, long after his military service that was found most likely due to his long history of smoking cigarettes. Accordingly, due to the facts above, the Gulf War presumption is not for application here. Therefore, the theory of entitlement that the Veteran's brain cancer or lung cancer was caused by in-service environmental hazards the Veteran was exposed to while in Southwest Asia does not afford a finding of service connection for the Veteran's cause of death. d. Direct service connection The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. That determination will be made by exercising sound judgment, without recourse to speculation, after a careful analysis of all the facts and circumstances surrounding the death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Here, the Veteran was service-connected for adjustment disorder at the time of his death. Accordingly, to establish service connection for the cause of his death, the evidence must show that service connection is warranted for the Veteran's lung cancer or brain cancer on a direct basis, or that his cancer was caused or aggravated by his service-connected adjustment disorder. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Initially, the Board notes that the Veteran's service treatment records are absent of complaint or treatment for lung cancer or brain cancer, or any respiratory or neurological disorder. Further, as discussed in detail above, the June 2021 VA examiner opined that the Veteran's lung cancer, which metastasized to his brain, was due not to any incident of service but instead is attributable to his long history of cigarette smoking. There is no evidence to the contrary. Further, there is no medical evidence that shows any causal connection between the Veteran's service-connected adjustment disorder and his cancer. The February 2020 examiner specifically stated that adjustment disorder does not cause or aggravate brain cancer and there is no medical or scientific evidence that shows any causal link between the two. The examiner concluded that the Veteran's death from brain cancer was not caused or aggravated by his service-connected mental disorder. After a full review of the record, the Board concludes that the weight of the evidence demonstrates that the Veteran's cause of death is not shown to be etiologically related to the Veteran's period of active service, or to his service-connected adjustment disorder. While the Board is sympathetic to the Appellant's claim, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.