Citation Nr: 21025275 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-31 934 DATE: April 27, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The immediate cause of the Veteran’s death was lung cancer. 2. The evidence is in relative equipoise as to whether the Veteran’s lung cancer was etiologically related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have been met. 38 U.S.C. §§ 101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1973 through April 1979. He died in October 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from January 2009 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant had requested the opportunity to appear before the Board and provide evidence with respect to these matters. The Board notes, however, in December 2013, she canceled the hearing that was previously scheduled. Therefore, the Board will adjudicate the claims based on the record. 1. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran’s lung cancer was caused by his service and was the primary factor in the Veteran’s death. Specifically, the appellant has asserted that the Veteran’s exposure to asbestos, radiation, or Agent Orange exposure caused the Veteran’s lung cancer. 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). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 ; 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (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). To find that the disease or 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. 38 C.F.R. § 3.312 (c)(1). 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 (c)(1). For service connection to be granted for the cause of the Veteran’s death, the appellant must show (1) a cause of the Veteran’s death is (or should be) service connected, or (2) a service-connected disability caused the Veteran’s death. Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s death certificate shows that his death was caused by lung cancer. The Veteran was not service-connected for lung cancer at the time of his death. Thus, service connection for the cause of the Veteran’s death may only be established if it is shown that his lung cancer should have been service-connected, i.e., was etiologically related to his service, or secondary to a service-connected disability. Concerning service connection for lung cancer, the evidence of record supports that the Veteran had a diagnosed disability of lung cancer at the time of his death. See March 2006 VA examination. Additionally. VA has conceded that the Veteran had been exposed to asbestos during service in the performance of his military occupational specialty (MOS) as a fire control technician. Thus, the first two elements for service connection of a current disability and an in-service injury has been satisfied. The remaining question for the Board is whether the Veteran’s cause of death is related to his in-service injury. The Board finds the record is in relative equipoise concerning a nexus. In May 2006, a VA examiner opined that it was less likely than not that the Veteran’s lung cancer was related to his asbestos exposure. The examiner rationalized that the Veteran did not have evidence of asbestos contamination in service or post-service. He also did not have asbestosis of the lungs with pleural plaques. The examiner further explained that the only reported type of cancer due to asbestos is mesothelioma and the Veteran had non-small cell lung cancer. A May 2017 VA examiner similarly offered a negative opinion finding that the Veteran’s cause of death was less likely than not related to his asbestos exposure. The examiner noted that the record was silent to any medical evidence of lung changes consistent with high asbestos exposures. The examiner echoed the previous examiner’s rationale finding that the only reported type of cancer related to asbestos is mesothelioma, and the Veteran did not have medical evidence of asbestosis. In May 2019, a VA examiner opined that it was as likely as not that the cause of the Veteran’s death was related to his asbestos exposure. The examiner noted that lung cancer was the immediate cause of the Veteran’s death. The examiner also offered a thorough analysis supporting the opinion, which cited medical evidence, discredited the May 2006 and May 2017 VA examiners’ opinions, and cited evidence of record in support of this positive opinion. While the examiner found against a connection to radiation, he did find that the lung cancer was as likely as not related to asbestos exposure. Regarding the existing medical evidence, there are conflicting medical opinions of record which were provided by competent and credible clinicians. It appears that the agency of original jurisdiction relied on the most recent, May 2019 negative radiation opinion to deny the claim, while disregarding the positive asbestos opinion. Regardless, the Board finds that the most probative evidence of record is in equipoise as to whether the Veteran’s lung cancer, which ultimately caused his death, was related to his service. Resolving all doubt in the Veteran’s favor, service connection for the cause of the Veteran’s death is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.