Citation Nr: 22014376 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-36 226A DATE: March 12, 2022 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. A service-connected disability did not cause or contribute substantially or materially to the cause of the Veteran's death. 2. The Veteran's death was not caused by a disability incurred in or aggravated by service, nor was it etiologically related to any incident or disease during the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1961 to June 1964. The Veteran died in June 2016; the Appellant is his surviving spouse. The Appellant filed for service connection for the cause of the Veteran's death in August 2016. This matter was remanded in April 2021, to obtain VA medical opinions on whether exposure to contaminants at Camp Lejeune was a cause of any of the conditions that lead to the Veteran's death. The instructed development having been conducted, the Board may now proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for cause of death The Appellant contends that the Veteran's death was due to his active service, including as a result of exposure to contaminated water at Camp Lejeune during his service. Dependency and Indemnity Compensation (DIC) is available to a surviving spouse who can establish that a Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). Service connection for the cause of a Veteran's death requires a showing that either the fatal disorder or disease was incurred in, or aggravated by, service or, in some instances, was manifest to a compensable degree within one year of service discharge and either caused or contributed substantially or materially to the cause of death. 38 U.S.C. §§ 1110, 1112, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312. 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. 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 standards and criteria for determining whether a disorder from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service-connected. 38 U.S.C. § 1310. To establish entitlement to service connection for a disability, 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-the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Effective March 14, 2017, VA amended 38 C.F.R. § 3.307 and § 3.309 providing a presumption of service connection for certain diseases associated with contaminants present in the base water supply at U.S. Marine Corps Base Camp Lejeune and Marine Corps Air Station New River (MCAS), North Carolina, during the period beginning August 1, 1953, and ending on December 31, 1987. Contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), and benzene and vinyl chloride, that were in the on-base water-supply systems. To qualify for the presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309(f), (i.e., kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer), (2) the disease manifest to a degree of 10 percent or more at any time after service; and (3) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. To deny a claim for benefits on its merits, the evidence must persuasively favor against the claim. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). At the time of the Veteran's death, he had been awarded service connection for a lumbar spine disability, left and right foot radiculopathy, bilateral pes planus, and traumatic headaches. The Veteran's cause of death was listed on his death certificate as a myocardial infarction, with underlying causes of chronic obstructive pulmonary disease (COPD), end stage renal disease, and chronic congestive heart failure (CHF). None of these conditions was service connected at the time of his death; 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. None of the conditions listed on the Veteran's death certificate are on the list of diseases presumptively caused by exposure to contaminants at Camp Lejeune. 38 C.F.R. § 3.309(f). Thus, although his service at Camp Lejeune has been confirmed, presumptive service connection cannot be awarded based on any presumed military environmental exposures. Entitlement to service connection may nonetheless be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the persuasive evidence of record weighs against a finding that any principal or contributory cause of the Veteran's death was service connected, or that any of his service-connected disabilities contributed to his death. Several VA medical opinions were obtained in August and September of 2021 regarding the etiology of all conditions that caused or contributed to the Veteran's death. The September 2021 VA medical opinion regarding myocardial infarction and CHF stated that "there have been no literatures or reports linking organic solvent exposure" to myocardial infarction or CHF. However, the Veteran had numerous risk factors for CHF and a myocardial infarction that were unrelated to his military service, including "smoking, hypertension, high cholesterol, obesity, and alcohol use," as well as a family history of cardiovascular problems. The examiner therefore found it less likely than not that the Veteran's myocardial infarction or CHF was caused by exposure to contaminants at Camp Lejeune. The September 2021 VA medical opinion regarding renal (kidney) disease also found that it was less likely than not that the Veteran's renal disease was related to contaminated water at Camp Lejeune, offering the following reasoning: His exposure to contaminated water with organic compounds was approximately twenty-one months, but the exposure level was low. One human study did reveal nephrotoxicity following exposure to TCE, but only at very high exposure levels. It is unlikely that [the Veteran] would have developed chronic kidney disease from low exposure to solvents over a period of time at Camp Lejeune. In addition, his [chronic kidney disease] developed between 2005 and 12/2008, which was 42 to 45 years after he was discharged from Camp Lejeune. That is an unexplainably long latency period. The examiner again offered more likely etiologies for the Veteran's renal disease, including kidney damage from hypertension, coronary artery disease, and morbid obesity, as well as an abdominal aneurism surgery in 2008 which damaged his renal artery. Similarly, the September 2021 VA medical opinion regarding COPD said that the Veteran's exposure level to contaminants at Camp Lejeune was "low" and "there has been no evidence to support causation between chronic obstructive pulmonary disease and solvents exposure." The examiner found it most likely that the Veteran's COPD was caused by his history of smoking, and less likely than not that exposure to contaminants during service contributed to developing COPD. Finally, an August 2021 VA medical opinion concluded that none of the conditions that were service-connected at the time of the Veteran's deathtraumatic headaches, bilateral pes planus, and degenerative disc disease with associated radiculopathiessubstantially or materially contributed to his cause of death, as there was no medical literature supporting a connection between these conditions and myocardial infarction. The Board finds the above VA opinions to be highly probative as the examiners reached the conclusions through the consideration of accurate facts and supporting data, based on the product of reliable principles and methods, and explained whether a connection exists between Veteran's death and service. See Nieves-Rodriguez, 22 Vet. App. 295, 300 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). There is no other medical opinion of record that contradicts the findings of the reports discussed above. Accordingly, there is no basis to find a nexus between the Veteran's active service and his cause of death. The Board is sympathetic to the Appellant's claim, and expresses condolences for her loss; however, because the evidence is against the claim of service connection for the cause of death, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.