Citation Nr: 21015927 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-40 145 DATE: March 18, 2021 ORDER Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran served on active duty from July 1963 to May 1965, during which he served for at least 30 days at Camp Lejeune. 2. The evidence is at least evenly balanced as to whether the Veteran’s amyloid light-chain (AL) amyloidosis was the principal cause of death and was caused by his exposure to contaminants at Camp Lejeune. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1113 1116A, 1310, 5107; 38 C.F.R. § 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision. In January 2017 the appellant submitted a notice of disagreement (NOD) as to the cause of the Veteran's death and in June 2018 the RO issued a statement of the case (SOC). In August 2018 the Veteran filed a substantive appeal (via VA Form 9). In March 2021, the appellant and multiple family members testified during a virtual hearing before the undersigned Veterans Law Judge. The Board greatly appreciates this testimony. The hearing transcript is not currently associated with the record. However, as the instant decision grants the benefit sought in full, there is no prejudice to the appellant by proceeding without the hearing transcript. Cause of death Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying Veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was related to the cause of death. 38 C.F.R. § 3.312(b). The appellant contends that the Veteran contracted AL amyloidosis as a result of exposure to contaminated water at Camp Lejeune and that this disease caused his death. The Veteran died in January 2013. His death certificate lists the immediate cause of death as cardiac arrest due to (or as a consequence of) end stage heart failure. AL amyloidosis was not listed on his death certificate and an autopsy was not performed. In a January 2013 letter, the Veteran’s private physician opined that the Veteran died of cardiac amyloidosis. There is no contrary medical opinion or evidence in the Veteran’s record to indicate otherwise. Accordingly, the Veteran’s AL amyloidosis is the principal cause of the Veteran’s death as it was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Because the Veteran was not in receipt of service connection for AL amyloidosis at the time of death, the Board must determine whether this disability was related to service. Hupp v. Nicholson, 21 Vet. App. 342, 353 (2007) (discussing the evidence and information required to substantiate a DIC claim based on a disability for which the Veteran was not in receipt of service connection at the time of death). In determining whether the disability that resulted in the death of a Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310(a). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). As to the in-service injury or disease element, a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987 shall be presumed to have been exposed during such service to water contaminated with volatile organic compounds (VOCs) during such service, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). The Veteran's service personnel records reflect that he was stationed at Camp Lejeune for at least 30 days during service. Hence, he is presumed to have been exposed to water contaminated with VOCs during service and has therefore met the in-service disease or injury requirement. In an August 2018 letter, the appellant stated that the Veteran was stationed at Camp Lejeune between 1963 and 1965 where he was exposed to contaminated drinking water, specifically, trichloroethylene (TCE), perchloroethylene (PCE), a dry cleaning agent, benzene, vinyl chloride, and other toxic compounds acknowledge by VA. The appellant stated that this exposure caused the Veteran to acquire AL amyloidosis. In support of her claim, the appellant cited a previous Board decision which granted service connection to another Veteran for AL amyloidosis based on exposure to contaminated drinking water at Camp Lejeune. Prior Board decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case but are nonprecedential and not binding. 38 C.F.R. § 20.1303. The Board need not consider the prior Board decision cited and referenced during the hearing, because the evidence in this case supports the grant of service connection for the cause of the Veteran’s death. An October 2016 VA physician opined that the Veteran's AL amyloidosis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA physician explained that the only known risk factors for AL amyloidosis are age and gender and that the underlying cause remains unknown. The VA physician explained that some researchers believe that as the body ages, damage from oxidation and/or free radicals builds up in the body and triggers the disease. Amyloid is more likely to form in people who have immune system problems. The VA physician researched medical literature through the Institute of Medicine and National Research Council which did not yield any substantive connections between solvent exposure and amyloidosis. The VA physician noted that the Agency for Toxic Substances and Disease Registry (ATSDR) website did not identify amyloidosis as a reported health problem associated with the Camp Lejeune contaminants. The VA physician addressed the private physicians who submitted positive nexus opinions and noted that they did not provide definitive statements or adequate opinions as to how the Veteran’s AL amyloidosis related to his exposure to contaminants at Camp Lejeune. The Board finds this opinion probative as it is clearly stated and supported by a thorough rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In a March 2016 letter, the Veteran’s private physician with the initials K.A.P. opined that the Veteran’s AL amyloidosis was due to his exposure to herbicide agents or chemicals in service. Also, in a January 2013 letter, the Veteran’s private physician with the initials R.S. opined that the Veteran’s AL amyloidosis was at least as likely as not related to his military service. The January 2013 private physician explained that although he could not say with complete certainty, AL amyloidosis is an extremely rare disease and his contaminant exposure at Camp Lejeune likely caused this disease. In a June 2011 letter, the Veteran’s private physician with the initials O.A. acknowledged that the cancers the Veteran was diagnosed with were not on the ATSDR website, however, this list is not exhaustive or exclusive. The June 2011 private physician ultimately concluded that the Veteran’s exposure to contaminants at Camp Lejeune likely caused him long term health problems. Three of the Veteran’s private physicians have indicated that the Veteran’s exposure to contaminants at Camp Lejeune negatively impacted his health and ultimately caused his death. While the language used by the January 2013 physician lacked certainty, it is nevertheless probative evidence. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). Taken together, the three opinions offered by the private physicians are highly probative given their relationship to the patient and their understanding of his overall health picture. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board finds the positive nexus opinions and lay testimony provided by the appellant and her family to be equal in probative weight to the negative nexus opinion provided by the October 2016 VA physician. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s AL amyloidosis is related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the cause of death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.