Citation Nr: 21077514 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-50 704 DATE: December 30, 2021 ISSUES 1. Entitlement to service connection for cause of death. 2. Entitlement to accrued benefits. ORDER Entitlement to service connection for cause of death is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran's death certificate lists the immediate cause of death as metastatic rectal cancer, metastatic rectal cancer to the liver and acute kidney injury on chronic kidney disease. 2. A service-connected disease or disorder did not cause or materially contribute to the Veteran's death. 3. The preponderance of the evidence is against a finding that the Veteran's metastatic rectal cancer, metastatic rectal cancer to the liver or acute kidney injury on chronic kidney disease is due to a disease or injury in service, to include as due to exposure to contaminant in the water at Camp Lejeune. 4. The Veteran did not have any pending claims before VA at the time of her death. CONCLUSIONS OF LAW 1. The criteria to establish service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The requirements for payment of accrued benefits have not been met. 38 U.S.C. §§ 5101, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from United States Army from September 1980 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Appellant testified at a virtual hearing before the undersigned Acting Veterans' Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Entitlement to service connection for cause of death. The Appellant contends that the cause of the Veteran's death was due to exposure to contaminated drinking water at Camp Lejeune. In this April 2021 testimony, the Appellant asserted that Veteran died of a presumptive disease. See June 7, 2018 Notice of Disagreement. See April 19, 2021 Board transcript, pg. 3. Dependency and Indemnity Compensation (DIC) 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. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence; or one that is proximately due to or the result of service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310. A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 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. Discussion At the time of the Veteran's death, she was not service connected for any disabilities. The Veteran's death certificate lists the immediate cause of death as metastatic rectal adenocarcinoma, metastatic rectal cancer to the liver and acute kidney injury on chronic kidney disease. No other significant conditions were identified as the cause of Veteran's death. See October 2015 Death Certificate. As will be discussed further below, the Board notes that metastatic rectal adenocarcinoma and acute kidney injury on chronic kidney disease are not one of the presumptive diseases associated with exposure to contaminated drinking water at Camp Lejeune. 38 C.F.R. §§ 3.307(a)(7), 3.309 (f). As the Veteran was not service connected for the condition listed as the cause of death on her death certificate, the Board will discuss whether the cause of death was otherwise caused by the Veteran's active-duty service, to include as due to exposure to contaminated drinking water at Camp Lejeune. Presumptions VA has established certain rules and presumptions for chronic diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The eight specified diseases are: kidney cancer; liver cancer; Non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and bladder cancer. See 38 C.F.R. §§ 3.307(a)(7), 3.309(f). Presumptive service connection refers to the primary cancer site and presumptive service connection is not warranted when the disease claimed resulted from metastasis of a disease not listed as presumptive. VAOPGCPREC 9-90 (Apr. 30, 1990); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom., Ramey v. Gober, 120 F. 3d 1239 (Fed. Cir. 1997), writ of cert den., 522 U.S. 1151, 140 L Ed. 2d. 181, 118 S. Ct. 1171 (1998). The Veteran's medical and personnel records confirm service at Camp Lejeune, and thus, exposure to contaminated drinking water at Camp Lejeune is conceded. 38 C.F.R. § 3.307. The central question for the Board is whether there is probative evidence linking this Veteran's cause of death to active-duty service, to include exposure to contaminated water at Camp Lejeune. Medical Opinion In March 2018, the RO sought medical opinions from a subject matter expert regarding the nexus or connection between contaminant exposure and the Veteran's acute kidney injury on chronic kidney disease. See March 17, 2018 Camp Lejeune Contaminated Water Medical Opinion (CLCW). In this March 2018 Medical Opinion, the subject matter expert reported that the Veteran was diagnosed with acute kidney injury in 2015. The subject matter expert also reported that the Veteran's diagnosis of chronic kidney disease was not confirmed. See March 17, 2018 CLCW Medical Opinion, pg. 1. The Board notes that this March 2018 subject matter expert noted review of the Veteran's service treatment records, prior medical history, post service treatment records and scientific literature in the formulation of this opinion. The subject matter expert also noted the risks of disease associated with contaminated drinking water at Camp Lejeune. Specifically the expert noted that "According to the Agency for Toxic Substances and Disease Registry (ATSDR), a part of the Centers for Disease Control and Prevention (CDC), on their Camp Lejeune, North Carolina, Water Modeling FAQs webpage (http://www.atsdr.cdc.gov/sites/lejeune/faq_water.html) the contaminated drinking water system at Camp Lejeune exceeded its current EPA maximum contaminant level, of at least one VOC in finished water, between August 1953 and January 1985." See March 17, 2018 CLCW Medical Opinion, pg. 1. In this 2018 medical opinion, the subject matter expert also included a medical discussion on chronic kidney disease, explaining that "chronic kidney disease, also known as chronic renal failure, is a general term to described reduced kidney function of all degrees and from any cause. It is more common as individuals age and is associated with an increased risk of cardiovascular disease. It is defined as either actual kidney damage or a reduced glomerular filtration rate of less than 60 mL/min/1.73m2 for at least 3 months. Chronic kidney disease has stages from 1to 5, with stage 5 indicating end-stage renal disease and being defined as a glomerular filtration rate of 15 mL/min/1.73m2 or less, indicating less than 15 percent of normal kidney function and resulting in dialysis or transplant. Imaging studies that can be useful to help determine the etiology of chronic kidney disease include renal ultrasonography, CT, MRI, and renal radionuclide scanning. Renal biopsy is indicated if the diagnosis and cause are unclear. There are many causes of chronic kidney disease, including diabetes, hypertension, vascular disease, primary or secondary glomerular disease, cystic kidney diseases, tubulointerstitial disease, urinary tract obstruction or dysfunction, recurrent kidney stone disease, birth defects of the kidney or bladder, and lack of recovery from acute kidney disease. The most common causes are diabetes and hypertension, accounting for almost 34 of all cases. According to the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), 1 in 10 American adults have some level of chronic kidney disease. It is the 9th leading cause of death in the U.S. and almost half of people greater than age 70 have chronic kidney disease. The global prevalence of chronic kidney disease is estimated at 11-13 percent, so this is a very common disorder. Some people are able to live with chronic kidney disease for years and maintain kidney function, while others progress to kidney failure. Blacks in the U.S. have rates of end-stage renal disease nearly 4 times that of whites. The EPA Toxicological Review of Trichloroethylene documented studies showing that high occupational exposure to trichloroethylene caused evidence of damage to the proximal renal tubules, but no evidence of end-stage renal disease except in high-level exposure for prolonged periods. Cohort and drinking water studies of exposures to trichloroethylene (TCE) mostly showed no evidence of significant toxicity to the kidneys (6-12) with one human study of aircraft maintenance workers showing evidence of toxicity to the kidneys after exposure to TCE, but only at high prolonged exposures. The results did not show a linear dose response and confounders such as hypertension, diabetes, and other kidney disease risk factors were not taken into account. An assessment of contaminated water supplies at Camp Lejeune concluded that TCE had a very small nephrotoxic potential in humans. Cohort and drinking water studies of exposure to perchloroethylene (PCE) showed no significant kidney toxicity. One study of dry cleaner workers, who typically had high and prolonged exposures to PCE in the past, showed no excessive chronic nephritis at any level of exposure. Another study of dry cleaner workers showed no statistically significant association between PCE and acute glomerulonephritis, nephrotic syndrome, acute renal failure, and total end-stage renal disease, but a small association between PCE and hypertensive end-stage renal disease. However, the group with hypertensive end-stage renal disease was extremely small at only 8 individuals, and the association was found only in the females, who made up 6 out of 8 of the individuals. There was no evidence in the literature of benzene or vinyl chloride causing end-stage renal disease." Id. at pg. 2. Clinical Course The Board notes that the March 2018 CLCW subject matter expert indicated review of the Veteran's clinical course with a discussion of relevant evidence, including the disability in question. These clinical notes included, but were not limited to the following: May 30, 2014 clinical note from Dr. CB (surgical oncology) regarding metastatic rectal carcinoma; quit smoking 5 years ago; no alcohol, intravenous drug abuse; body mass index 33.83; July 6, 2015: A.A., CRNP - Urinary tract infection due to methicillin-resistant Staph aureus; status post extensive abdominoperineal surgery June 17, 2015; status post ureteral injury with ureteral reimplantation and ureterolysis, left stents, Foley cath insertion, moderate hydronephrosis; acute renal failure, question post renal obstruction, creatinine continues to trend upwards; July 16, 2015 S.A., CRNP - Rectal cancer metastasized to liver, status post chemotherapy, hypertension, neuropathy; quit cigarettes January 1, 2000; rare alcohol; mother - hypertension, kidney disease; July 16, 2015 - Dr. B.S (nephrology) - acute kidney injury improving; creatinine 3.3; estimated glomerular filtration rate 18; October 12, 2015 - Dr. V.R - acute kidney injury, rectal adenocarcinoma stage 4 with significant disease progression; discharge to hospice; creatinine 4.99, BUN 7; October 13, 2015 - Dr. R.D. (Hospice) - metastatic rectal cancer with liver metastases, sepsis, renal dysfunction, liver failure, altered mental status. After review of the Veteran's claims file, including service treatment records, post-service treatment records, the Veteran's prior medical history (including clinical course) scientific literature, the March 2018 subject matter expert opined that the diagnosis of acute kidney injury is confirmed and is less likely as not caused by or a result of the Veteran's exposure to contaminated water at Camp Lejeune. The diagnosis of chronic kidney disease is not confirmed. The March 2018 subject matter expert provided the following rationale to support this opinion: The Veteran is a 53-year-old black female at the time of her death on October 17, 2015 from metastatic rectal cancer. She was based at Camp Lejeune from April 28, 1982 to June 17, 1983 for a total of 415 days. No occupational history post-military service was documented in the provided medical record that I could find. Her mother had a history of hypertension and kidney disease. She smoked cigarettes until January 1, 2000. She drank alcohol rarely and had no history of illicit drug use. The Veteran was diagnosed with metastatic rectal carcinoma in May 2014. She underwent chemotherapy and radiation therapy. Her kidney function was normal from May 16, 2014 through July 1, 2015. She underwent extensive abdominoperineal surgery on June 17, 2015 including left ureteral reimplant and stent placement and developed severe acute kidney injury post-operatively. She required an indwelling catheter due to urinary retention. An ultrasound done July 3, 2015 showed mild to moderate right hydronephrosis (kidney swelling) and mild left hydronephrosis. The Veteran was found to have a urinary tract infection due to methicillin-resistant Staph aureus as of July 6, 2015 and developed acute kidney failure. She had another ureteral stent placed on July 8, 2015. Her acute kidney injury was noted to be improving as of July 16, 2015. She was noted on October 9, 2015 to have now developed a gram-negative urinary tract infection and possible obstructive uropathy. It was felt that she might have kidney injury due to widely metastatic lesions. A CT of the abdomen and pelvis done October 12, 2015 showed free air in the right collecting system and mild prominence of the right ureter, possible due to metastatic disease. The Veteran died on October [REDACTED], 2015. The file contains no evidence of chronic kidney disease. The Veteran developed acute kidney injury in June 2015 which continued until her death in October 2015. The injury was attributed to multiple causes, including direct injury from surgery for her cancer, at least two different infections, kidney swelling, and possible metastases to the renal system. There is no reason to presume that the acute kidney injury had any connection to exposure to CLCW 32 years prior given that it was clearly related to her metastatic rectal cancer and treatment. Therefore, the diagnosis of chronic kidney disease was not confirmed, and the Veteran's acute kidney injury was less likely as not caused by or related to her exposure to CLCW. See March 17, 2018 CLCW Medical Opinion, pg. 1. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds this March 2018 CLCW medical opinion both adequate and probative for the following reasons: First, the subject matter expert indicated review of the Veteran's claims file, including service treatment records, post service treatment records and service personnel records showing her service at Camp Lejeune for 415 days. Second, the subject matter expert referenced scientific literature regarding the risk of disease associated with contaminated water at Camp Lejeune. Third, the medical opinion was rendered by a subject matter expert who referenced and discussed relevant clinical notes in the record, including data points in the course of the Veteran's illness, from diagnosis until the time of her death, providing a reasoned explanation, supported by medical principles for the conclusion reached. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Fourth, the medical opinion provided sufficient information as to the nature and etiology of this Veteran's cause of death for the Board to make an informed decision on the Appellant's claim. The Board is also cognizant that a metastatic primary cancer is distinct from a collection of different cancers. Presumptive service connection refers to the primary cancer site and presumptive service connection is not warranted when the disease claimed resulted from metastasis of a disease not listed as presumptive. VAOPGCPREC 9-90 (Apr. 30, 1990); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom., Ramey v. Gober, 120 F. 3d 1239 (Fed. Cir. 1997), writ of cert den., 522 U.S. 1151, 140 L Ed. 2d. 181, 118 S. Ct. 1171 (1998). Specifically, as referenced above, the Veteran's treating physicians found that the Veteran had metastatic rectal adenocarcinoma, and that as such it has spread to other parts of the body. This finding is reflected in the following clinical notes: (1) May 30, 2014 clinical note from Dr. C.B. (surgical oncology) reports that the Veteran has a diagnosis of metastatic rectal carcinoma; (2) July 16, 2015 progress note from S.A., CRNP reporting rectal cancer metastasized to liver; (3) October 13, 2015 treatment record re: metastatic rectal cancer with liver metastases (Dr. R.D., Hospice); See, March 17, 2018 Camp Lejeune Contaminated Water Medical Opinion, pg. 1; See also, Death Certificate: metastatic rectal cancer to the liver. As such, the primary cancer site is the rectal carcinoma. To the extent that the Veteran has metastatic cancer cells in the liver, metastasis is not entitled to presumptive service connection under 38 C.F.R. § 3.309 (f), nor is she entitled to a separate award of service connection for the disorders. As her treatment records fail to show primary liver or kidney cancer, the medical evidence does not support the Veteran's claim. Lay testimony The Board acknowledges the Board Hearing testimony offered by the Appellant in April 2021 where he asserted that the Veteran's illnesses were related to contaminated water at Camp Lejeune since she bathed and drank this water. The Veteran testified that that he read an article in the Washington Post in 2017 that if you had been in Camp Lejeune and you got these diseases and illness you should file a claim. The Veteran acknowledged that he never submitted the Washington Post article, but that he was never asked to submit the article. The Appellant also testified that before the Veteran died, she stated to him that some of her problems stem from Camp Lejeune. See April 19, 2021 Board Hearing transcript, pgs. 6-7. There is no indication that the Appellant is competent to determine that the Veteran's metastatic rectal cancer, metastatic rectal cancer to the liver or acute kidney injury on chronic kidney disease, was due to exposure to contaminated water at Camp Lejeune. Indeed, this issue is medically complex, as it requires ability to interpret, evaluate, and synthesize multiple empirical studies of relationships between contaminant exposure and cancers, chronic renal disease and acute renal injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Opinions of that nature require medical expertise and are outside the realm of common knowledge of a layperson. Id. Consequently, the Board gives more probative weight to the opinion of the March 2018 CLCW subject matter expert. The Board also observes that while the Appellant testified at his Board hearing that he was not asked to bring in the Washington Post article referenced above, he was afforded the opportunity to provide any medical or scientific evidence to support his claim during the course of this appeal. See December 5, 2017 VA Correspondence. Additionally, considering the probative opinion of the March 2018 CLCW subject matter expert, which included an extensive discussion on chronic renal disease buffeted by scientific and medical references, in addition to detailed rationale as to the nature and etiology of this Veteran's cause of death, there is no basis to conclude that this article would outweigh the probative medical evidence of record. Notably, the Appellant has not provided a medical nexus opinion contrary to the opinion of the subject matter expert. It follows that the Board finds the medical opinion rendered by the March 2018 CLCW expert both probative and persuasive as to the nature and etiology of this Veteran's cause of death. To reiterate, the March 2018 subject matter expert determined the Veteran was diagnosed with metastatic rectal carcinoma in May 2014. In June 2015, she developed acute kidney injury in June 2015 which continued until her death in October 2015. The subject matter expert reported that the injury was attributed to multiple causes, including direct injury from surgery for her cancer. The subject matter expert determined that the file contains no evidence of chronic kidney disease. The March 2018 subject matter expert concluded that chronic kidney disease was not confirmed, and the Veteran's acute kidney injury was less likely as not caused by or related to her exposure to CLCW. See March 17, 2018 CLCW Medical Opinion, pg. 1. It is important to note that the Appellant does not claim that the Veteran had metastatic rectal cancer, metastatic rectal cancer to the liver or acute kidney injury on chronic kidney disease during service or within one year thereof. See April 19, 2021 Board Hearing testimony, pg. 4. Indeed, a review of the Veteran's service treatment records, as well as other evidence of record, reveals no complaints, treatment, or diagnosis of metastatic rectal adenocarcinoma, metastatic rectal cancer to the liver or acute kidney injury on chronic kidney disease until 2014 (32 years post service). The Appellant instead simply maintains that the Veteran's death was caused by exposure to contaminated drinking water at Camp Lejeune. However, as noted above, there is no link between the Veteran's metastatic rectal cancer, metastatic rectal cancer to the liver or acute kidney injury on chronic kidney disease and exposure to contaminated drinking water at Camp Lejeune. In summary, the Board finds that the preponderance of the evidence is against a finding that the Veteran's metastatic rectal cancer, metastatic rectal cancer to the liver or acute kidney injury on chronic kidney disease is due to a disease or injury in service, to include as due to exposure to contaminant in the water at Camp Lejeune. For the above reasons, the Board finds that the preponderance of the evidence is against the Appellant's claim and service connection for the Veteran's cause of death is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to accrued benefits. Under 38 C.F.R. § 3.1000, certain eligible individuals, including a Veteran's surviving spouse, may be paid periodic monetary benefits authorized by VA law to which a payee was entitled - and which are due and unpaid - at the time of his or her death under existing ratings or based on evidence in the file or constructively of record at the time of his or her death. See 38 U.S.C. § 5121(a). Pertinent to this claim, in certain cases a portion of such accrued benefits may be paid as necessary to reimburse the person who bore the expense of last sickness or burial. 38 C.F.R. § 3.1000 (a) (5). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit held that, for an eligible person to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (holding that a consequence of the derivative nature of an accrued benefits claim is that, without the veteran having a claim pending at time of death, the eligible survivor (in this case a surviving spouse) has no claim upon which to derive his or her own application). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). A recent change to VA law also allows a person eligible to receive accrued benefits to instead substitute himself or herself as the claimant for the purpose of processing any claims pending at the time of the Veteran's death to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). The record shows that at the time of the Veteran's death in October 2015, she did not have any pending claims. (Continued on the next page) Because the Veteran did not have any pending claims when she died, entitlement to accrued benefits may not be granted as a matter of law. See 38 C.F.R. § 31000; Jones, 136 F.3d at 1299. By the same token, there were no pending claims for which the appellant could substitute himself as a claimant. See 38 U.S.C. § 5121A. Consequently, entitlement to accrued benefits is denied. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.