Citation Nr: 21042039 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-14 333 DATE: July 11, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The immediate cause of the Veteran's death was listed as cardiopulmonary arrest and chronic lymphocytic leukemia. Metastatic squamous cell carcinoma of the face was listed as a significant contributing cause of death. 2. At the time of his death the Veteran was not service-connected for any disability. 3. None of the disabilities causing or contributing to the Veteran's death have been shown to be etiologically related to active duty service. CONCLUSION OF LAW 1. A service-connected disability did not cause death or contribute substantially or materially to death. 38 U.S.C. § §§ 1131, 1310, 5103, 5103A, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1957 to November 1960 and November 1960 to December 1977 in the United States Air Force. In February 2021, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for cause of death is denied. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. 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 was the principal or contributory cause of death. 38 C.F.R. § 3.312. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(b), (c). The appellant contends the Veteran's death was related to his service. She specifically contends that the Veteran had radiation and chemical exposures during his service at Johnston Atoll, which contributed to the conditions that caused the Veteran's death. In a March 2021 VA opinion obtained after the most recent VA remand, a VA physician provided concluded that the Veteran's immediate and contributing cause of death was not etiologically due to the alleged active duty exposures claimed by the appellant. By way of background the examiner noted that the historical evidence does not support any participation by the Veteran in atmospheric nuclear testing that occurred at the Johnston Atoll in 1962. A report from the Defense Threat Reduction Agency states that involvement in a radiation risk environment continued for six months following the 1962 detonations. The restricted areas of the facility at Johnston Atoll were decontaminated, repaired, and reopened in 1962 with subsequent surveys and remediation efforts outside the restricted areas taking place from 1964 to 1966. During that time the island was also enlarged from 220 to 625 acres. The Veteran was stationed at Johnston Atoll for a total of 371 days between 1965 and 1967. In support of their opinion the examiner cited medical literature from the New York Department of Health Environmental Health Bureau of Environmental Radiation Protection. With respect to radiation and cancer, the examiner stated that "increased cancer incidence is well established for doses above 10rem." For low dose exposure the examiner stated that "it has not been possible to scientifically determine if an increased risk exists, but many scientists believe that small doses of radiation do lead to increased cancer risk and that the degree of risk is directly proportional to the size of the dose." The examiner further explained that "risk estimates from low doses are obtained by extrapolation from high dose observations." The examiner went on to cite McGraw-Hill's Dictionary of Scientific and Technical Terms to define what a "millirem" is, and an article from the Massachusetts Institute for Technology to establish that the average environmental exposure level for Americans is 300 millirems a year at sea level and 400 millirems at elevation. The examiner used these averages to compare to the Veteran's radiation dose estimate from the Defense Threat Reduction Agency for his time spent at the Johnston Atoll. The estimate states the highest estimated dose the Veteran was exposed to was 13 millirems. Finally, the examiner stated, regarding chemical exposure, "I cannot resolve this issue without resorting to mere speculation since the claimed chemical substance is not named or found in submitted medical records, therefore, unable to opine with respect to an unknown chemical." An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. The Board will accept the VA examiner's opinion as to the effect of alleged chemical exposure in this case because it is based on all procurable and assembled data. The examiner specifically noted that there is no identification of the chemicals in question here. The Board notes that a review of the record shows the appellant has alleged exposure to unknown chemicals but there is no identification of the specific chemicals the appellant believes are responsible for the Veteran's conditions. The examiner explained the basis for the conclusion reached and the Board finds there is no additional information available that would permit an opinion to be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The appellant has also alleged the Veteran had exposure to herbicides that may be the etiology of the conditions that caused his death. However, development by the Agency of Original Jurisdiction (AOJ) reveals that while Agent Orange was stored in a limited area of the Johnston Atoll, this storage was managed by civilian personnel and began several years after the Veteran had left the island. Taking the opinion and evidence as a whole, including the cited average yearly exposure in America, the Board finds that the examiner adequately supported his finding that the conditions identified as the Veteran's cause of death were less likely than not etiologically related to exposures occurring during his time at Johnston Atoll. Specifically, the Board finds the examiner's incorporation of the Veteran's dose estimate and demonstration that the exposure levels fall well below the average yearly exposure domestically is probative evidence in support of this opinion. Additionally, as there is no competent evidence to establish exposure to herbicides or identified chemicals the Board finds that the evidence of record does not support a finding that either alleged exposure was the source of the Veteran's conditions causing or contributing to his death. As the preponderance of the evidence is against the claim, service connection for the cause of the Veteran's death is denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.