Citation Nr: 21028328 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-15 652A DATE: May 11, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in March 2015; the cause of death was cardiopulmonary failure and metastatic colon cancer. 2. At the time of his death, the Veteran was not service connected for any disabilities. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1993 to August 1998. He died in March 2015. The appellant is the Veteran's surviving spouse. This matter is on appeal from a July 2015 rating decision of the Agency of Original Jurisdiction (AOJ). In March 2019, the appellant appeared for a hearing before the undersigned Veterans Law Judge of the Board. The hearing transcript is associated with the claims file. In September 2019, the Board remanded the matter for additional evidentiary development. Legal Criteria To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). A 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). A "contributory cause of death" is inherently one not related to the principal cause. In determining whether the 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). Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multi-symptom illness. 38 C.F.R. § 3.317. Service connection may be established for disability resulting from undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of symptoms, or a diagnosed illness that is determined by VA regulation to warrant a presumption of service connection which manifested itself either during active service in the Southwest Asia theater of operations during the Gulf War period, or to a degree of ten percent or more after the date on which the Veteran last performed service in the Southwest Asia theater of operations during the Gulf War period. Id. Service connection for the cause of the Veteran's death The appellant contends the Veteran's colon cancer was caused by his exposure to hazardous chemicals and environments during his service in the Southwest Asia theater of operations during the Gulf War and duties as an Aviation Storekeeper. Specifically, the appellant asserts that the Veteran was exposed to hazardous materials during service to include burn pits, trichlorethylene, petroleum fuels, pesticides, toxic heavy metals, radioactive materials, asbestos, and environmental factors while deployed to the Persian Gulf, in the Southwest Asia area of operations and Kuwait. See VA Form 9 dated March 2016. The Veteran died on March 2015. His death certificate identifies the immediate cause of death as cardiopulmonary failure and metastatic colon cancer. At the time of his death, the Veteran was not service connected for any disabilities. As an initial matter, the Board acknowledges that the Veteran has qualifying service and was aboard an aircraft carrier in the Persian Gulf deployed to the Southwest Asia theater of operations. With that said, however, the cause of the Veteran's death is not a qualifying chronic disability determined by VA regulations as related to Persian Gulf service under 38 C.F.R. § 3.317. Meaning, the cause of death, colon cancer, has been attributed to a known clinical diagnosis with an understood etiology, and the Veteran did not have an undiagnosed illness, or any medically unexplained chronic multi-symptom illness recognized by VA as related to Persian Gulf service. Therefore, service connection based on the presumption is not warranted in this case. 38 C.F.R. § 3.317. Notwithstanding the presumption, the Board must address service connection on a direct basis. To that end, service connection for the cause of the Veteran's death requires more than a showing of a clinical diagnosed disability. Rather, it must be shown that colon cancer was incurred in-service or caused by injury or disease that began during a period of active duty service, or otherwise linked to his time in active service. In order to specifically address this complex etiological medical question, the Board remanded the matter in September 2019 to obtain an adequate medical opinion. The record shows a comprehensive February 2021 VA medical opinion rendered by an Attending VA physician, which the Board finds constitutes the most probative medical evidence of record. Citing a thorough review of the evidence of record, including research articles and medical literature, the Attending physician provides a detailed opinion addressing each contention raised by the appellant and record. See VA medical opinion dated February 2021. For direct service connection, the VA physician opined that it is less likely than not that the Veteran's colon cancer was incurred in or caused by the claimed in-service injury, event or illness. In the rationale, the physician noted that the Veteran served four years in the Navy from 1993 to 1998, and "Fourteen years later at the age 37 he was diagnosed with metastatic colon adenocarcinoma of the rectum following 2 months of rectal bleeding and a colonoscopy revealing a 5cm rectal mass on 5/23/2012 according to the medical records." Id. The physician added, "Review of the Veteran's STRs show no evidence of the onset of any symptoms, physical findings, testing, diagnosis or treatment for the condition of colon adenocarcinoma or related condition while on active duty. Thus, there is no medical evidence that the Veteran's colon adenocarcinoma was incurred while on active duty." Id. Next, in response to whether the Veteran's colon cancer was causally related to service due to any verified hazardous materials exposures, the February 2021 Attending physician stated, "Review of the Veteran's STRs and separation examination dated 6/14/1998 are negative for any documented exposure during active service. The Veteran served in the Navy as an aviation storekeeper for a fighter squadron on an aircraft carrier. A document dated 8/21/2020 states significant exposure to hazardous materials would be unlikely in the Veteran's role as the storekeeper as opposed to a mechanic or a member of the flight deck. There is also supplied dates of duty on two aircraft carriers, one the older prior USS America and the newer USS George Washington (commissioned in 1992). The times of on-board ship duty total 10 months over three years between 1995 to 1998. The records supplied also state no request for exposures could be processed by the Military Records Research Center because no details of any exposure was provided." Id. The physician added that the Veteran's role as an aviation storekeeper on an aircraft carrier was conceded by VA as "minimal asbestos exposure." Citing medical literature, the physician added that, "clinically, significant asbestos exposure is usually due to the installation or removal of asbestos products such as insulation that can cause aerosolized asbestos particles." But that "being potentially exposed to intact asbestos surface is considered of minimal exposure as noted in the records." Id. The physician acknowledged the appellant's claims of exposure to burn pits, hydraulic fluid and "ordnance weapons" but noted that there was no additional detail and reiterated the previous finding that "review of STRs show no known documented exposures to toxic substances such as exposed asbestos, hydraulic fluid or radiation on board ship or due to munitions or other possible sources." Id. The physician commented that "it is uncertain what is specifically claimed by the [appellant] regarding exposure to ordnance weapons. Depleted uranium is used as a component in some military weapons to include nuclear bombs and armor-piercing rounds. While the use of depleted uranium in equipment is concerning for individuals regarding potential exposure, depleted uranium is known to have 60% of the radioactive power of the naturally occurring metal and far less than the "enriched uranium" used in nuclear power or bombs." Citing War Related Illness and Injury Study Center of the Department of Veterans Affairs, the physician indicated that the "presence of ordnance with components made from depleted uranium is not considered a risk at this time according to the WRIISC of the VA." Id. In addressing the contention of burn pit exposure, the physician stated that "the Veteran was reportedly deployed from his ship to the Kuwait International Air Force base with a maintenance crew in 1995. While 1995 is within the time frame of consideration of potential Gulf War or Southwest Asia exposures, 1995 was not in the period of wartime hostilities and there is no record of the Veteran having any specific exposure to burn pits, radiation or excessive hydraulic fluid while stationed there." Id. The physician further added, "the 9/25/2020 document from the 9/13/2019 BVA remand notes that while the VA does concede military personnel exposure to volatile compounds such as polycyclic aromatic hydrocarbons and volatile organic compounds to include organic halogenated dioxins, this exposure period is noted to begin in 2001, six years after the Veteran was stationed in Kuwait. While the VA has conceded exposure to these compounds in 2001 and later, there is currently no known illness or medical condition linked to these potential exposures at this time according to VBA guidelines. In this document there is also reference to exposure to contaminated water that is limited to chromium exposure at the Iraqi water treatment plant in 2003, again separated in time and geography from the Veteran's service in Kuwait in 1995 and thus unrelated to his service and deployment." Id. Regarding potential Gulf War exposures in general, the physician cited to a report from the Institute of Medicine of the National Academies of Sciences, Engineering and Medicine, published in 2016, citing which conditions are believed possibly related to Gulf War service. The physician noted that, "The 2016 report specifically mentions that there is 'inadequate and insufficient evidence' to establish a link between Gulf War service and cancer such as metastatic colon adenocarcinoma. According to the committee report, 'based on available research data, it does not appear that a single mechanism can explain the multitudes of symptoms seen in Gulf War illness, and it is unlikely a definitive causative agent or agents can ever be identified." Id. As to the internet articles submitted by the appellant in March 2019 and April 2019 which "purport to support the contention the Veteran service was causative of the condition of metastatic colon adenocarcinoma," the physician stated the "articles supplied are not scholarly articles citing medical studies and research from the medical literature but instead news stories from the popular media." The physician noted deficiencies in each article and explains how the information is not related to the Veteran's case. For instance, one article cites "data from 2009 and beginning in 2002 from the Veteran Health Administration Office of Public Health and Environmental Hazards regarding an increase in illnesses found in Veterans of Operation Iraqi Freedom and Operation Enduring Freedom." However, the physician pointed out that "the Veteran served in Kuwait in 1995 and was discharged from active duty in 1998, five years before Operation Iraqi Freedom began and thus, the data does not pertain to his service nor does it confirm the contention. "The third article from the Army Times on 7/30/2008 refers specifically to chromium water contamination at the Iraqi water treatment plant in 2003 many years after the Veteran's service in Kuwait in 1995 and discharge from active duty in 1998 and thus, is unrelated to the issues in the claim. The fourth article is from the online publication The Huffington Post and discusses two service members who were diagnosed with metastatic colon cancer in 2005 and 2006 shortly after serving in Iraq. The article refers to concerns amongst the public of the potential effects of depleted uranium, but contains no documented medical studies or literature proving a link between colon cancer and depleted uranium ordnance or armour. The article is highly speculative and as noted, the War Related Illness and Injury Study Center of the VA has at this time found no ill-health effects to routine exposure to depleted uranium in military ordnance or armour except in the cases of embedded shrapnel injuries." Additionally, the VA physician acknowledged and rebutted the March 2019 private opinion from the Veteran's primary care physician, Dr. Miller who found the Veteran's duties of being "responsible for storeroom supplies" and exposure to "hazardous radioactive materials," asbestos and "engine maintenance products and petroleum fuel" and this "long-term exposure" is "causally related" to the Veteran's subsequent development of metastatic colon cancer. The VA physician found Dr. Miller's opinion "highly speculative without grounding in medical specifics or evidence of cause between exposure and disease." The physician indicated that there was "no medical citations, studies from the medical literature or discussion of possible pathophysiological affects are noted in the letter to support Dr. Miller's belief. The Veteran served in the military for five years. Nowhere in the letter does Dr. Miller address any specific exposure the Veteran may have had nor quantify these exposures in relation to the Veteran's reported duties. There is no medical citation in his statement of how the substances he cites as concerning are related to possible development of metastatic colon cancer later in life." In response to Dr. Miller's letter stating the Veteran's "asbestos exposure" was a likely factor in his development of colon cancer, the VA physician explained the Veteran has a conceded minimal exposure risk from his duties as an aviation storekeeper aboard an aircraft carrier, and cited to "three large meta-analysis that have failed to show a correlation between colon cancer and asbestos. Asbestos is not a recognized risk factor for colon cancer according to the medical literature." As to Dr. Miller's contention that "store room supplies" without specific description were a mechanism of disease and contributed to the Veteran's development of colon cancer, the VA physician found the statement "highly speculative and without likely medical grounding" as there was no support, lacking "details from the Veteran's medical service records or medical literature." The physician also pointed out that Dr. Miller "denotes his believed risk from radioactive materials without citing specific sources, exposures or types of radiation. The lack of known risk of radioactive material for this Veteran has been discussed above." As to Dr. Miller's suggestion that "engine maintenance products and jet fuel played a role in the Veteran's development of colorectal cancer," the VA physician also rebutted such findings citing National Institute of Health (1996) study published 1996 and conclusions of the Occupational Environmental Medicine published 1998. The VA physician stated, "[c]onsidering the Veteran was not a maintenance worker or a jet refueler but rather a storeroom keeper, his exposure to these solvents and fuels would reasonably be less significant and thus Dr. Miller's contention of a causative link to colorectal cancer would be highly speculative." Lastly, the VA physician addressed the genetic testing which the Veteran underwent after his diagnosis of colon cancer. The physician observed that the records did note the Veteran had a brother who had multiple adenomatous colon polyps that wee benign, but indicated that a first degree relative with a colon polyp is an independent risk factor for colon cancer above even without the genetic markers. "Additionally, absence of a genetic marker for colorectal cancer or a positive family history of colon cancer itself does not make the development of colon cancer in any given individual an unusual diagnosis, as the far majority cases of colon cancer even at a young age are considered 'sporadic' meaning they occur without known genetic markers or positive family history." The physician commented that "for Dr. Miller to state since the Veteran is 'without risk factors' for colorectal cancer (without considering the potential effects of diet or the Veteran's brother's colon polyp noted in the UNC medical records) and to conclude his colorectal cancer must then be caused by some military exposure has no basis in fact, is highly speculative and is not supported by the medical literature." Id. The February 2021 Attending physician concluded, "based on the medical evidence from the Veteran's STRs, cancer treatment records and medical literature the Veteran's death from complications of metastatic colon cancer was not incurred in nor causally due to his military service." Id. After weighing all the evidence of record, the Board finds that the medical evidence is significantly probative in determining whether the appellant has substantiated the claim for service connection. Consequently, it is not shown that the colon cancer that caused the Veteran's death was causally linked to his active service. Further, consideration has been given to the assertions of appellant that the Veteran's colon cancer was due to his active service. Although the appellant, as a lay person, is competent to report her observations of the Veteran's symptoms, she lacks the medical training or qualification determine the etiology of a claimed disability or independently opine as to a medical nexus of a disability. Davidson v. Shinseki, 581 F.3d 1313 (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, for this purpose, the appellant's lay statements are not considered competent medical evidence, and the Board assigns more weight to the February 2021 VA medical opinion. Finally, the Board would like to express that it is extremely sympathetic toward the appellant's claim and is deeply appreciative of the Veteran's military service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death, and the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.