Citation Nr: 21010283 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-19 713 DATE: February 24, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The preponderance of the evidence does not show the principal or contributory causes of the Veteran’s death are the result of disease or injury that was incurred or aggravated in the line of duty during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.311, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from March 1969 to March 1989. The Veteran died in May 2018. The Appellant is the surviving spouse. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in December 2020. The Board remanded to provide an addendum medical opinion regarding the immediate and underlying causes of the Veteran’s death. Cause of Death and Service Connection Service connection may be granted for the cause of a veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran’s death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Entitlement to service connection for the cause of the Veteran's death The Appellant contends the Veteran’s cause of death is related to the Veteran’s active military service, to include long-term exposure to ionizing radiation as an X-ray technician. Generally, claims of service connection based on exposure to ionizing radiation are determined: (a) on a presumptive basis under 38 C.F.R. § 3.309(d) if the veteran is a “radiation-exposed veteran” and diagnosed with one of the 15 types of cancer which are presumptively service connected; (b) under 38 C.F.R. § 3.311(b) for radiogenic diseases; or (c) through establishing service connection, by showing that the disease or malady was incurred during or aggravated by a condition or event during service. Rucker v. Brown, 10 Vet. App. 67, 71 (1997); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Turning to the record, the Veteran’s death certificate recorded the Veteran’s immediate cause of death as acute on chronic respiratory failure, with underlying causes recorded as acute end-stage pulmonary fibrosis exacerbation, hypotension, and acute renal failure. Additionally, the death certificate lists NSTEMI as another significant condition contributing to the Veteran’s death. The diseases listed as the Veteran’s cause of death are not found in the list of diseases specific to radiation-exposed veterans; thus, service connection cannot be established on a presumptive basis. 38 C.F.R. § 3.309(d). Pursuant to 38 C.F.R. § 3.311, a claimant may be entitled to service connection based on claimed exposure to ionizing radiation, when it is determined that: (1) the veteran was exposed to ionizing radiation in service; (2) subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations. The term radiogenic disease means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b). Under the framework of 38 C.F.R. § 3.311, if the veteran has one of the enumerated radiogenic diseases, a radiation dose assessment will be obtained and the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran’s disease resulted from radiation exposure during service. Notably, this regulation does not include any non-cancerous lung, heart, or kidney conditions, to include pulmonary fibrosis, hypotension, NSTEMI, or acute renal failure. 38 C.F.R. § 3.311(b)(iii)(2). However, if a claim is based on a disease other than one of the conditions listed in 38 C.F.R. § 3.311(b)(iii)(2), VA shall nevertheless consider the claim under this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). Here, the Veteran’s immediate, underlying, and contributory causes of death are not radiogenic diseases as defined in 38 C.F.R. § 3.311. The Board recognizes the Appellant submitted medical evidence addressing the harmful effects of radiation exposure and the biological effects of X-rays on X-ray technicians. The evidence in support outlines the harmful effects of occupational exposure to ionizing radiation. However, the Appellant’s submitted evidence does not address the Veteran’s causes of death as a radiogenic disease. As such, the Appellant’s claim of entitlement to service connection is not warranted under 38 C.F.R. § 3.311. The availability of presumptive service connection for radiation-exposed Veterans and service connection claims for radiogenic diseases under 38 C.F.R. § 3.311 does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). The evidence of record confirms that the Veteran worked as an X-ray technician during his active service military career. The record contains the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), documenting the measured exposure to ionizing radiation from July 1970 to November 1988. In that timespan, the Veteran’s service treatment records noted the Veteran experienced a range of exposure to ionizing radiation from 00.002 to 00.384 rem. The June 2017 memorandum from The Director of the Post 9/11 Era Environmental Health Program (10P4Q) stated: “The Health Physics Society, in their position statement PS010-3, Radiation Risk in Perspective, revised in May 2016 and further revised in February 2019, states that “The average annual equivalent dose from natural background radiation in the United States is about 3mSV [.03 rem]. A person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5.0 rem] in the first 17 years of life and about 250 mSV [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data shows evidence of health effects following high-dose exposure (many multiples of natural background). However, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero.” (See VA Memo). The Veteran’s service treatment records showed the Veteran demonstrated a “cigarette cough” on his April 1968 enlistment examination. The Veteran’s January 1989 physical examination upon retirement from active service noted the Veteran’s chest X-ray revealed a linear density overlying the right cardiac border, possibly representing an area of fibrosis or minimal atelectasis. The examination noted the Veteran’s lungs were well expanded without evidence of mass, infiltrate or pleural effusion. The Veteran’s February 1989 service treatment record noted the Veteran’s chest X-ray revealed fibrosis in his right mid lung. The treating physician noted no acute cardiopulmonary disease. A December 2002 chest X-ray reported the Veteran’s lungs were adequately inflated without effusion or infiltrate. The X-ray noted some slight density, representing minimal infiltrate or scarring. The private examining physician concluded the X-ray showed right basilar focal infiltrate versus scarring. The Veteran underwent abdominal and chest computed tomography (CT) scans in December 2002. The Veteran’s lung bases were reported as clear. The scan showed no pulmonary embolus. No focal infiltrates or effusions were seen. The examining physician reported no significant abnormalities. The evidence of record noted the Veteran smoked a pack to a pack and a half of cigarettes a day for 20 years. He noted quitting in 1987, nearly 30 years before his death. The Veteran’s private medical records from May 2003 demonstrated the Veteran showed no acute disease in his chest. The Veteran’s chest X-ray revealed no confluent infiltrate or pleural effusion was present. The Veteran’s private treatment record from May 2004 noted the Veteran underwent a whole-body PET scan and a spiral chest CT scan with negative results. The private physician noted the Veteran’s problem list included oxygen dependent COPD, Cushing’s disease with resulting hypertension, diabetes, and osteoarthritis. The private physician noted the Veteran underwent a cardiac catheterization in June 2003. The private records noted the Veteran was without coronary artery disease, but did experience exercise dyspnea. The Veteran’s February 2014 private treatment records reported the Veteran’s past medical history for a carcinoid tumor of the left lung, requiring a left lung lobectomy. Additionally, the Veteran had a history of adrenalectomies, transsphenoidal surgery, and gamma knife surgery of the pituitary. The Veteran’s April 2015 private treatment record noted the Veteran’s chest CT scan revealed chronic interstitial lung disease, with some bronchiectasis in the right lung. In August 2018, VA provided a medical opinion regarding the Appellant’s claim for service connection for the cause of the Veteran’s death. The VA examiner provided the medical opinion that it was less likely than not that the Veteran’s pulmonary fibrosis had its onset in service. The examiner noted the Veteran’s December 2002 chest CT scan revealed no fibrosis or interstitial lung disease. The examiner stated that as pulmonary fibrosis is a chronic progressive condition it is less likely as not that the fibrosis noted on the Veteran’s chest X-ray in service at retirement was an early manifestation of the idiopathic pulmonary fibrosis that led to the Veteran’s death. In April 2020, VA provided the Appellant with an additional examination to address the claimed service connection of the Veteran’s cause of death. The VA examiner reported the Veteran’s death certificate recorded the causes of death as: acute on chronic respiratory failure, acute end stage pulmonary fibrosis exacerbation, hypertension, and acute renal failure. NSTEMI was listed as a significant condition contributing to death on the death certificate. Following a review of the body of evidence, the VA examiner provided the medical opinion that it was less likely than not that any in-service condition or treatment caused or contributed to the Veteran’s death. The examiner identified the Veteran’s chronic smoker’s cough noted on the enrollment examination. The examiner noted the Veteran’s service treatment records reported multiple treatments for cough and upper respiratory infection symptoms in service. The VA examiner noted these in-service symptoms were more likely than not the result of the Veteran’s smoking. The VA examiner reported that the Veteran had negative chest X-rays in service prior to his separation examination. The examiner noted the Veteran’s January 1989 separation examination included chest X-ray evidence of an area of fibrosis, but it did not demonstrate diffuse changes of pulmonary fibrosis. The examiner noted the Veteran did not exhibit symptoms of pulmonary fibrosis, to include shortness of breath, cough, and crackles on his lung examination. The VA examiner noted these symptoms were not present during service or one year after discharge. The examiner noted the 2002 chest scan was negative for any disease of the lungs. The VA examiner concluded that the absence of pulmonary fibrosis on the 2002 CT scan showed that the Veteran’s pulmonary fibrosis at the time of his death could not have had its onset while in service. Finally, the VA examiner stated that idiopathic pulmonary fibrosis has no known cause. However, the examiner cited to medical literature to note cigarette smoking is strongly associated with idiopathic pulmonary fibrosis. Pursuant to the Board remand, VA provided an addendum opinion to address the Veteran’s intermediate causes of death. In December 2020, the VA examiner provided additional evidentiary review and medical opinions addressing the Veteran’s causes of death. The VA examiner noted the Veteran’s treatment records showed that in May 2018, the Veteran was admitted for worsening dyspnea. The VA examiner noted the Veteran had a history of end-stage pulmonary fibrosis with chronic hypoxic respiratory failure. The VA examiner noted the Veteran had no history of heart disease in service. The VA examiner noted the Veteran’s service treatment records were absent of hypotension and his blood pressure measurements were normal. The VA examiner provided the medical opinion that the Veteran’s hypotension was less likely than not etiologically related to the Veteran’s military service. The VA examiner noted the Veteran’s hypotension was due to the Veteran’s end-stage idiopathic pulmonary fibrosis. The VA examiner provided the opinion that the Veteran’s acute renal failure was less likely than not etiologically related to active service. The examiner identified the Veteran developed hypertension in 2000, approximately 10 years after separation from service. The VA examiner noted the record showed the Veteran’s diagnosis of Cushing’s syndrome and subsequent development of proteinuria as of 2002. The examiner cited to a December 2014 medical treatment record, in which the Veteran’s treating physician’s assessment was that the Veteran’s acute kidney injury was most likely secondary to NSAID use, but may be progression of chronic kidney disease. Further the Veteran’s chronic kidney disease was most likely due to hypertension over the years. Finally, the VA examiner provided the medical opinion that the Veteran’s NSTEMI, listed as an underlying cause of death, was less likely than not etiologically related to his service. The VA examiner noted the Veteran had a normal EKG as a part of his separation physical examination in January 1989. The VA examiner noted the Veteran’s June 2003 treatment record which noted moderate pulmonary hypertension but no obstructive coronary artery disease. The examiner noted the Veteran’s terminal treatment record demonstrated the Veteran’s NSTEMI was a result of hypotension, due to the underlying idiopathic pulmonary fibrosis. The Board finds the April and December 2020 VA medical opinions to be the most probative evidence of record that there is no causality between the Veteran’s cause of death and service. The VA medical opinions were based on a thorough review of the Veteran’s medical treatment records and were supported by a fully articulated rationale with citations to medical literature. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The VA examiner thoroughly addressed the evidence of record and provided the Veteran’s medical history. The VA examiner established the Veteran’s primary cause of death had its onset after December 2002, at least 13 years after the Veteran’s separation from service in March 1989. The Board recognizes the Appellant’s lay assertions that the Veteran’s death was related to his in-service occupational exposure to ionizing radiation as an X-ray technician. Lay persons are competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Appellant as a layperson has not demonstrated the appropriate medical training and expertise to provide a probative opinion regarding the etiology of idiopathic pulmonary fibrosis and the diseases listed as intermediate and contributory conditions to the Veteran’s death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board reiterates that besides the Appellant’s assertion of the causation between the Veteran’s service-connected disabilities and his death, there is no medical or lay evidence that shows any of the Veteran’s service-connected radiation exposure raised beyond normal levels of background radiation. (See VA Memo). Further the Veteran’s service treatment records are absent of evidence of any event, injury, or complaints during service pertaining to the diseases recorded as primary or contributory causes of the Veteran’s death. Thus, the Board concludes that the preponderance of evidence is against the Appellant’s claim and the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.