Citation Nr: 21027305 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-51 693 DATE: May 5, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran's certificate of death lists the immediate cause of death as metastatic non-small cell lung cancer; obstructive pneumonia was listed as another significant condition contributing to death but not resulting in the underlying cause; tobacco use contributed to death; at the time of his death, service connection was in effect for tinnitus; the probative evidence of record does not show that the listed cause of the Veteran's death was related to his active military service or that a service-connected disorder caused or contributed substantially and materially to the Veteran's death. 2. At the time of his death, the Veteran was not in receipt of, nor entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2020). 2. The legal requirements for establishing entitlement to DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to July 1989, from September 1990 to July 1991, and from February 2003 to November 2003. The Veteran died in December 2015 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 decision. The Appellant presented testimony before the Board in March 2020. In April 2020, the matters were remanded for further development. 1. Entitlement to service connection for the cause of the Veteran's death Through statements and testimony, the Appellant contends that the Veteran's death from metastatic non-small cell lung cancer was the result of his Persian Gulf War service. Specifically, she maintains that the Veteran was exposed to environmental hazards while serving in the Persian Gulf, to include uranium, sodium dichromate from the Qarmat Ali Water Treatment facility, and burn pits. At the time of his death in December 2015, service connection was only in effect for tinnitus. His death certificate lists his immediate cause of death as metastatic non-small cell lung cancer. Obstructive pneumonia was listed as another significant condition contributing to death but not resulting in the underlying cause. Tobacco use was found to have contributed to death. When a veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents. 38 U.S.C. § 1310. In a claim where service connection was not established for the fatal disability prior to the death of the Veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. 38 C.F.R. § 3.312. There is no factual basis in the record that the fatal disease listed on the Veteran's death certificate, metastatic non-small cell lung cancer, was incurred during service. Service treatment records are negative for the fatal disease. Post-service, he did not suffer from the fatal disease until 2014, some 11 years after his discharge from service in 2003. The Veteran died from the disease in 2015. Clearly, there was the passage of many years between discharge from active service and medical documentation of lung cancer. These factors tend to weigh against a claim for direct service connection. Moreover, in this case, while the Veteran served in the Persian Gulf during Operations Desert Shield, Storm, and Enduring Freedom, compensation is not warranted on a presumptive basis for metastatic non-small cell lung cancer as it is not an undiagnosed illness or medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. Finally, the record does not include any probative medical evidence or opinion showing a causal relationship between the Veteran's fatal disease and his active military service. 38 C.F.R. § 3.303; Stefl v. Nicholson, 21 Vet. App. 120 (2007. In fact, the preponderance of the evidence shows that his lung cancer was the result of an intercurrent cause a 1.5 pack per day, 38 year history of tobacco use. 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 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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(c)(1). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). A July 2016 VA examiner opined the Veteran's military service in Persian Gulf and the possible exposure to depleted uranium, sodium dichromate or other hazardous chemicals less likely as not caused or substantially contributed to the Veteran's death from metastatic non-small cell lung cancer and obstructive pneumonia. The examiner reasoned that there was no evidence in the medical literature that depleted uranium caused or contributed to the development of the Veteran's lung cancer or pneumonia. After review of the medical record, the September 2017 VA examiner opined the Veteran's metastatic non-small cell lung cancer was less likely the result of claimed exposures to uranium, sodium dichromate, and other hazardous chemicals and environmental hazards while in Iraq, Kuwait, and Saudi Arabia. The examiner reasoned the Veteran's lung cancer was caused by/the result of his longstanding tobacco smoking history. Specifically, the Veteran smoked 1.5 packs per day for 38 years, having only quit in 2013. The examiner indicated the Veteran's lung cancer was not caused by or the result of his exposure to sodium dichromate/hexavalent chromium as the latency period for development of lung cancer after such exposure was approximately 30 years. The examiner indicated the Veteran had less than 25-years of latency period. The examiner further stated that the molecular features of chromate and smoking associated cancers were very different as well as the location of chromate lung tumors and the Veteran's type and location of lung cancer was typical of a smoker's lung cancer. Metastatic non-small cell lung cancer was not typical of a chromate-related exposure. The examiner also found that the Veteran's lung cancer was not caused by or a result of his claimed exposure to uranium. The examiner reasoned that the scientific literature revealed that an increased risk of lung cancer was not appreciable with exposure to doses of radiation less than 120 working-level months in uranium miners and the Veteran had negligible uranium exposure while in service. His cumulative dose to negligible uranium exposure while in the service did not exceed 30 months. Significant risk of lung cancer in uranium miners occurred after a cumulative dose of 3720 working level months or more. The examiner stated that the Veteran's metastatic non-small cell lung cancer is a respiratory disability condition with a clear and specific etiology and his diagnosis was less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner further opined Veteran's service-connected tinnitus, medications used to treat conditions in service (PB nerve agent pill, Mark-1 antidote kit, antimalaria pills, dexedrine), or any other condition noted in service less likely as not caused or substantially contributed to the Veteran's death. The examiner reasoned the Veteran's lung cancer was caused by or the result of his longstanding smoking history. The Veteran's service treatment records did not reveal a diagnosis that would have at least as likely as not contributed to the Veteran's death. The examiner stated that scientific literature does not support the premise that Veteran's tinnitus results in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. The Veteran's tinnitus did not cause or result in a lengthy hospital stay or associated debilitation. In the June 2020 VA medical opinion, after reviewing the evidence of record, the examiner opined the Veteran's metastatic non-small cell lung cancer was more likely than not caused by or a result of his longstanding, 1.5 packs per day for 38 years, tobacco smoking history. The examiner reasoned that people who smoke cigarettes are 15 to 30 times more likely to get lung cancer or die from lung cancer than people who do not smoke. The more years a person smokes and the more cigarettes smoked, the more the risk for lung cancer goes up. The Veteran's relative risk of lung cancer was increased approximately 30 times as a result of his long smoking history duration (38 years), the increased number of cigarettes smoked over 38 years, and the early age that he started smoking, eight or nine years old. The examiner indicated that the scientific literature regarding burn pit exposures during Gulf War was inadequate and insufficient to support the premise that burn pit exposures increase the risk of cancer including lung cancers. The examiner then cited to multiple studies that found no statistically significant association between Gulf War deployment status and the proportion of veterans diagnosed with cancer. The examiner discussed the Young study cited by the Appellant and found it did not adjust or control for smoking patterns. The examiner found that this study did not support the premise that Gulf War exposure increases the risk of lung cancer when one acknowledges that the important smoking confounder was not adjusted or controlled for in the statistical analysis. The examiner also discussed the Halder and Giri study cited by the Appellant and indicated that it was not published in a peer-reviewed journal and it was a poor study design and had an unacceptably low number of subjects and the authors of the study also admitted that their study did not provide enough information for a definitive conclusion about links between burn pit exposure and fatal illness including lung cancer. The examiner concluded there was insufficient and inadequate evidence to determine whether an association exists between deployment to the Gulf War and any form of cancer, including lung cancer. The examiner found that the Veteran's metastatic non-small lung cancer was not related to the Southwest Asia hazardous environmental exposure, to include exposure to burn pits. The Veteran's lung cancer and subsequent death was based on conclusive pathophysiology and conclusive etiology. The Veteran's diagnosis was not considered medically unexplained as his disease has a clear and specific etiology and diagnosis. The Veteran's lung cancer and subsequent cause of death was less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner concluded the Veteran's metastatic non-small cell lung cause was more likely caused by his longstanding tobacco smoking history. The examiner reiterated the Veteran's risk of lung cancer was increased approximately 30 times as result of the 38 year history of smoking, the increased number of cigarettes he smoked over those 38 years, and the fact that he began smoking at an early age, either eight or nine years old. The examiner reasoned that the scientific literature lacks supportive evidence demonstrating a causal relationship for lung cancer that exceeds 96.7 percent causal determination from cigarette smoking for any Southwest Asia exposures including smoke and particles from oil well fire; pesticides and insecticides; indigenous infectious diseases; solvent and fuel fumes; ingestion of pyridostigmine bromide tablets as a nerve gas antidote; combined effects of multiple vaccines administered upon deployment; inhalation of ultra-fine grain sand particles; and/or exposure to smoke and particles from military installation burn pit fires that incinerated a wide range of toxic waste materials. Based on the evidence delineated above, the Board finds that the record does not include any probative medical evidence or opinion that a service-connected disability contributed substantially or materially to the Veteran's death; that it combined to cause death; or that it aided or lent assistance to the production of death. As noted above, service-connection was only established for tinnitus during the Veteran's lifetime. Medical evidence is required to establish a causal connection between a disability of service origin and the Veteran's death. See Van Slack, 5 Vet. App at 502. Due to the lack thereof, the Appellant's claim must be denied on a direct basis as there is no evidence that a service related disease or injury caused the Veteran's death. In arriving at the decision to deny the claim, 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 for entitlement to service connection for the cause of the Veteran's death, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service-connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of the Veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or was rated as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war (POW) and died after September 30, 1999. 38 U.S.C. § 1318. The critical facts in this matter are not in dispute. The Veteran was not an ex-POW. Service-connection was in effect for tinnitus rated 10 percent disabling from August 2013 at the time of his death. Thus, the legal criteria for DIC benefits under 38 U.S.C. § 1318 are not met, and the Appellant's claim for this benefit must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.