Citation Nr: 21014332 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-61 531 DATE: March 11, 2021 ORDER The claim of entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s death certificate shows he died in June 2015. The immediate cause of death was small cell lung cancer. 2. At the time of his death, the Veteran was not service connected for lung cancer or any other disability. 3. The Veteran’s service at Camp Lejeune totaled approximately 35 months. 4. The most probative evidence of record does not establish the Veteran’s lung cancer, manifested in service, arose within one year of separation from service, or was the result of any injury, disease, or event during active service, to include the presumed exposure to contaminated water at Camp Lejeune. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. § 1110, 1131, 1310, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1957 to June 1978. He died in July 2015. The Appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision. The claim was remanded in August 2019 for additional evidentiary development. The Veteran’s death certificate shows he died in June 2015. The death certificate shows the immediate cause of death was small cell lung cancer. At the time of his death, service connection was not in effect for lung cancer. To establish service connection for the cause of the Veteran’s death, the evidence must show a service-connected disability was either the principal cause or a contributory cause of death. See 38 U.S.C. §§ 1110, 1131, 1310 (2012); 38 C.F.R. § 3.303, 3.310, 3.312 (2020). 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 or be etiologically related. Id. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially. It is not sufficient to show it casually shared in producing death, but rather, it must be shown there was a causal connection. See 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2020); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). If the cause of death was not service-connected, as in this case, the Board must consider whether the cause of death could have been service-connected. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Additionally, service connection based on continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a) (2020). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for the cause of the Veteran’s death. The Appellant maintains that the Veteran’s death from small cell lung cancer was due to his exposure to water contamination at Camp Lejeune. She has not argued, and the evidence does not establish, that he developed lung cancer during his military service or within one year of separation from service. Here, the Veteran’s Certification of Death reflects that the cause of death was small cell lung cancer and past smoking. However, at the time of the Veteran’s death he was not service connected for lung cancer. Regarding an in-service incident or injury due to contaminated water exposure at Camp Lejeune, VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1957 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs), including trichloroethylene (TCE), perchloroethylene (PCE), benzine, and vinyl chloride. 38 C.F.R. § 3.307(a)(7) (2020). Based on analyses of potential exposures at Camp Lejeune and scientific studies involving these chemicals, the National Academy of Sciences National Research Council (NRC) provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants TCE and PCE. Fourteen diseases, including lung cancer, were placed into the category of limited/suggestive evidence of an association and there is a presumption for VA treatment purposes. See 38 U.S.C. § 1710 (2012); 38 C.F.R. § 17.400 (2020). The Board also notes during the pendency of this appeal, effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight 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, although none of these additional eight diseases is at issue in this appeal. 38 C.F.R. § 3.309(f) (2020). Military records reflect that the Veteran was stationed at Camp Lejeune, North Carolina, from September 1957 to December 1957, from January 1962 to May 1962, and from January 1976 to June 1978. His exposure to contaminated water at Camp Lejeune totaled 35 months. Thus, the element of an in-service injury due to contaminated water exposure at Camp Lejeune is met. In this case, the missing element as to a service connection claim is the third element - a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Lung cancer, and residuals thereof, is not included as one of the eight presumptive conditions but, as described above, is included as one of the fourteen diseases listed in the category of limited/suggestive evidence of an association with the consumption of water at Camp Lejeune. Thus, as there is limited/suggestive evidence of an association between lung cancer and exposure to contaminated water at Camp Lejeune, VA obtained additional medical opinion as explained in the Board’s October 2020 remand. For clarity, the summarization of the claim up to that period is repeated below. The evidence of record includes the Veteran’s service treatment records (STRs) which are negative for complaints of, or diagnosis, of any chronic respiratory/lung disorder. Private records dated in June 2015 reflect that the Veteran was seen for chest pain and discomfort and found to have a lung mass, diagnosed as small cell lung cancer. He died in July 2015. At the outset, the Board notes that there are two VA medical opinions of records dated in May 2016 and August 2020 which the Board previously found to be inadequate. As such, they will not be discussed any further herein. A VA medical opinion dated in December 2020 stated that, after a review of the claim file, the Veteran’s small cell lung cancer was less likely as not (less than 50% probability) caused by or a result of his exposure to contaminated water at Camp Lejeune. The VA examiner conceded that the evidence showed that the Veteran was at Camp Lejeune and exposed to contaminated water. Specifically, he was stationed at Camp Lejeune, North Carolina, from September 1957 to December 1957, from January 1962 to May 1962, and from January 1976 to June 1978. The examiner noted his exposure to contaminated water at Camp Lejeune totaled 35 months. For rationale, it was noted that the Veteran smoked cigarettes from 1962 to 2007 (or 44 years). His smoking could range from a half of a pack to one full pack a day or more, and he would have an increased risk of lung cancer that ranged from between a 3 to 5 fold increased risk with one half a pack and from 6 to 8 fold increased risk if the Veteran smoked a full pack a day. Taking the midpoint of the range would put the Veteran’s lung cancer risk at 4 to 6 fold increased risk due to his smoking. After adjusting downward due to smoking cessation, the Veteran’s lung cancer risk would still be a 2 to 3 fold increased risk due to his smoking. In addition, his advanced age of 76 put him at increased risk, gender, and a family history of lung cancer also increased his risk. When considered together, the Veteran’s lung cancer risk due to personal risk factors markedly outweighed his environmental risks from exposure to contaminated water at Camp Lejeune. He further noted that the Veteran’s risk of lung cancer from PCE and vinyl chloride exposure at Camp Lejeune for 35 months was elevated in the range of 40 to 60% increased risk for service members stationed there for 22 months. The Veteran was stationed there an additional 13 months longer than the average service member, so he had a 50% higher risk than the average service member stationed at Camp Lejeune. Even after adding in the additional risk due to longevity of assignment at Camp Lejeune, the environmental risk was only a half of the lung cancer risk posed by personal risk factors. The VA examiner referenced many medical treatise articles to include ATSDR Camp Lejeune Drinking Water Public Health Assessment (2017); ATSDR Toxicology Profile for Benzene (2007); Agency for Toxic Substances and Disease Registry; EPA Toxicology Profile for Vinyl Chloride (2000); ATSDR Toxicology Profile for Vinyl Chloride (2006); The National Research Counsel 2009 Report of Epidemiological studies of Solvent Contaminated Water Supplies at Camp Lejeune; ATSDR Toxicological Profile for Trichloroethylene (2014); National Academy of Science Institute of Medicine Review of VA clinical Guidance for the Health Conditions Identified by the Camp Lejeune Legislation (2015); IARC Monographs on the Evaluation of Carcinogenic Risks to Humans; National Toxicology Program (NTP). Report on Carcinogens (2015); EPA Toxicological Review (2011); and ATSDR Morbidity Study of Former Marines, Employees, and Dependents Potentially Exposed to Contaminated Drinking Water at U.S. Marine Cops Base Camp Lejeune (2018). The Board finds the opinion to be adequate for appellate review. Indeed, it is based on an accurate factual premise, a review of the file, and the opinion is supported by a full rationale which includes medical literature as reference. Therefore, the Board affords it great probative weight. Additionally, the Board has considered whether there is competent credible evidence of continuity of symptomatology of lung cancer as a malignant tumor since service, or whether such manifest to a compensable degree within one year of separation but finds that there is not. Post-service treatment records indicate the Veteran was not diagnosed for lung cancer until many years after separation from service in 2015. Therefore, service connection based on the provisions for chronic symptoms in service or continuous symptoms since service is not warranted. See Walker, 718 F.3d at 1331. The Board further notes that the evidence does not show, and the Veteran does not contend, that lung cancer or symptoms of lung cancer arose during service or is otherwise etiologically related to service. The Veteran’s STRs reveal no diagnosis of a respiratory disability or symptoms thereof. Furthermore, as described above, there is no medical evidence of record that objectively demonstrates the Veteran had complaints related to his diagnosis of lung cancer until many years after his separation from active service. This long gap between his discharge from service and the earliest clinical evidence of lung cancer is evidence that weighs against his claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In sum, the Board has reviewed the evidence of record, as well as the pertinent law and regulations, and for the reasons noted above, finds the preponderance of the evidence is against the Appellant’s claim. Indeed, the records contains a singular competent medical opinion which stands uncontradicted y any other opinion of record. Moreover, the evidence fails to show that the Veteran’s lung cancer first manifested in service or within a year from service. Thus, service connection for cause of death due to lung cancer, to include as due to contaminated water exposure at Camp Lejeune, 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 claim, that doctrine is not applicable here. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.