Citation Nr: 21028608 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-25 959 DATE: May 11, 2021 ORDER Entitlement to service connection for prostate cancer as a result of exposure to ionizing radiation for the purposes of accrued benefits is granted. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's prostate cancer was at least as likely as not related to in-service exposure to ionizing radiation. 2. The Veteran's death certificate reflects that he died in May 2010. One of the immediate causes of death listed is metastatic prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer for accrued benefits purposes are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1131, 1310, 5107 (2018); 38 C.F.R. §§ 3.303, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to May 1984. He died in May 2010. The Veteran's surviving spouse is the appellant. She appeals a December 2010 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for prostate cancer and the Veteran's cause of death. In May 2014 and November 2018, the Board remanded the appellant's claims to the AOJ for further development. Thereafter, in December 2019, the Board denied the appellant's claims for service connection for prostate cancer and the Veteran's cause of death. The appellant appealed the December 2019 Board decision to the Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMR. The claims are back before the Board for further appellate proceedings. 1. Prostate Cancer Prior to his death, the Veteran claimed entitlement to service connection for prostate cancer as a result of his exposure to ionizing radiation. Specifically, he argued that he was exposed to ionizing radiation as a result of his duties guarding a nuclear missile site in Germany. See October 2009 VA Form 21-526 at 8. The appellant has largely reiterated the Veteran's contention that his prostate cancer was caused by his exposure to radiation in service while he was stationed in Germany. For situations where a Veteran had a claim pending at the time of death, a surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing ratings or decisions or other evidence that was on file when he died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Here, the appellant is the Veteran's surviving spouse, the Veteran had a claim pending at the time of his death, and the appellant filed a claim for accrued benefits within one year of the Veteran's death. But for the appellant to prevail, the evidence at the time of the Veteran's death must show that the Veteran was entitled to the grant of his claim for service connection. See 38 C.F.R. § 3.1000(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A November 2009 VA treatment record demonstrates that the Veteran was diagnosed with prostate adenocarcinoma in 2005, and that his diagnosis at the time was aggressive prostatic malignancy with metastatic disease to the liver, retroperitoneal and pelvic lymph nodes, and axial skeleton. See November 2009 Medical Treatment Record Government Facility at 2. In addition, regarding the Veteran's assertions that his in-service duties included working at a nuclear missile site in Germany, the Board finds that such is consistent with the evidence of record and finds no reason to question his assertions. In this regard, his military personnel records reflect that he was awarded the Army Achievement medal "for the highly successful accomplishment of his unit's security mission, both in the field and at a fixed combat alert site." See February 2009 Military Personnel Record. The period covered by the award was September 1981 to August 1983. Furthermore, the Veteran reported in February 2010 that his duties consisted of providing security to Pershing I and II missiles. See February 2010 VA Form 21-0820. With no evidence to the contrary, the Board finds that the evidence of record at the time of the Veteran's May 2010 death demonstrates a current disability and an in-service event of exposure to ionizing radiation. Thus, the first two Shedden elements are met, and the remaining question is whether the Veteran's prostate cancer was etiologically related to his exposure to ionizing radiation. On this question there is a probative opinion in favor of the claim. In November 2009, a VA physician opined in a record added to the file in November 2009, that the Veteran's toxic exposure could be reason for the atypical presentation of his prostate cancer. See November 2009 Medical Treatment Record - Government Facility at 3. In support of the opinion, the VA physician noted the hormone refractory, which occurred at a younger age than usual and had a rare pathology due to neuroendocrine features. Id. Furthermore, the VA physician noted the Veteran's exposure to toxins. Id. The Board places great weight of probative value on the November 2009 opinion of the VA physician. The opinion is consistent with the record and reflects consideration of the Veteran's history, including his exposure to ionizing radiation. Therefore, the Board resolves any reasonable doubt in favor of the Veteran and concludes that the requirements of 38 C.F.R. § 3.303(a) have been met. As such, service connection for prostate cancer for accrued benefits purposes is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Cause of Death To grant service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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). 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). This decision awards service connection for the Veteran's prostate cancer. Furthermore, metastatic prostate cancer is listed as one of the immediate causes of the Veteran's death on his death certificate. As such, entitlement to DIC based on cause of death is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.