Citation Nr: 22014665 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-52 224 DATE: March 14, 2022 ORDER Service connection for the cause of the Veteran's death is denied. REMANDED Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities for accrued purposes is remanded. FINDING OF FACT The Veteran's fatal brain cancer was not etiologically related to his military service, including in-service exposure to contaminated water at Camp Lejeune. 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, 5103A, 5107; 38 C.F.R. §§ 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1975 to December 1981 and September 1982 to February 1988, and the United States Army from January 1990 to March 1993. For his meritorious service, the Veteran was awarded (among other decorations) the Marine Good Conduct Medal with two stars, the Overseas Service Ribbon, and the Army Achievement Medal. Regrettably, the Veteran died in February 2018. The appellant in this case is his surviving spouse. She offered testimony during an October 2021 Travel Board hearing. A transcript of this proceeding has been associated with the record. Briefly, the Board notes that the Veteran submitted a claim seeking service connection for brain cancer in July 2015. This claim was denied in an October 2016 rating decision, and the Veteran did not submit a timely Notice of Disagreement (NOD) with respect to this determination. During the pendency of this appeal, the appellant has argued that she should be afforded the opportunity to submit an NOD to the October 2016 rating decision, as she was unaware that there was a one-year deadline and/or that she could file on behalf of her then-living spouse. See, e.g., November 2018 VA Form 9; January 2019 lay statement. However, the October 2016 notification letter clearly instructs the parties as to the timeline and manner for submitting a proper NOD, and there is no evidence that this letter was not received by the Veteran. Thus, the Board does not find good cause to allow for the submission of an untimely NOD with respect to the October 2016 rating decision. However, this finding results in no negative impact to the appellant, as consideration regarding the Veteran's entitlement to service connection for brain cancer is part and parcel of the pending cause of death appeal. Cause of Death The appellant is pursuing service connection for the cause of the Veteran's death. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For the disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. It must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Here, the appellant does not contend, nor does the evidence otherwise show, that the Veteran's service-connected disabilities caused or contributed to his death. See, e.g., March 2018 rating codesheet; death certificate. Rather, the appellant argues that the Veteran was entitled to service connection for his fatal brain cancer. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Here, there is no controversy that the Veteran suffered from brain cancer during his lifetime. VA treatment records show that the Veteran was diagnosed with a frontal lobe glioblastoma in 2015, which ultimately led to his death in February 2018. Thus, the first element of direct service connection is met. As to the second element, both the Veteran and his spouse attributed his brain cancer to in-service exposure to contaminated water at Camp Lejeune. The record confirms the Veteran's assignment to Camp Lejeune between 1976 and 1977. See generally service personnel records; see also August 2016 VA opinion (reporting service at Camp Lejeune from November 1976 to August 1977). As such, the Veteran's in-service exposure to contaminated water is presumed under 38 C.F.R. § 3.307(a)(7). However, brain cancer is not among those diseases presumptively linked to such exposure, such that service connection cannot be awarded on a presumptive basis in this case. 38 C.F.R. § 3.309(f). Nonetheless, the appeal may succeed upon the finding of a causal nexus between the Veteran's brain cancer and military service. Of record is an August 2016 negative nexus opinion, offered by a VA examiner and member of the Subject Matter Expert Panel for the Camp Lejeune Contaminated Water Project. Upon review of the evidence, the examiner concluded that the Veteran's brain cancer was less likely than not caused by or the result of his exposure to contaminated water at Camp Lejeune. The accompanying rationale is several pages long. In sum, the examiner notes that the Veteran's approximately nine months of service at Camp Lejeune is "well below the median duration of exposure of 18 months." The International Agency for Research on Cancer reports that only radiation and electromagnetic fields are possible causes for adult brain cancer. Additionally, the National Academy of Sciences undertook an initial review of the adverse health effects related to the water contaminants at Camp Lejeune in 2009, subsequently classifying "cancer of the brain or central nervous system" as disorders for which there was inadequate or insufficient evidence of a causal association. Additionally, the Agency for Toxic Substances and Disease Registry (ATSDR) provides toxicologic profiles for benzene, trichloroethylene, and perchloroethylene, and which do not identify brain cancer as an "outcome[] of concern." With respect to vinyl chloride, the toxicology profile acknowledges that brain cancer may be connected with breathing the chemical over a period of time. However, brain cancer is also not noted as an outcome of concern. In offering this literature review, the examiner acknowledged that data on vinyl chloride and brain cancer is "quite controversial," and several recent publications suggest a protective effect of halogenated hydrocarbons against the development of brain cancer, for unknown reasons. Thus, the literature in support of this contention is "ambiguous" at best. The examiner then offered case-specific, disease-specific, and academic literature reviews which contemplated the full realm of relevant considerations in this case, from the nature and duration of the Veteran's contaminated water exposure to the onset and progression of his brain cancer, as supported by scientific literature. Thereafter, he reiterated that the Veteran spent nine months of Camp Lejeune, representing half of the median duration of exposure. There is no excess brain cancer death rates among residents at Camp Lejeune; national and international bodies do not include Camp Lejeune contaminants as known causes for brain cancer; and a recent literature search document a protective effect of such agents. Although there is some "weak and ambiguous" evidence for a relationship between high occupation exposures to vinyl chloride and brain cancer, this relationship has been generally discounted by medical bodies. Thus, a nexus was not asserted in this case. The above opinion is highly probative. Compellingly, the opinion is offered by a medical professional with subject matter expertise which is directly relevant to the impact of contaminated water exposure at Camp Lejeune; affords direct and detailed consideration as to the Veteran's specific military and medical histories compared against known and accepted medical literature; and accounts for the existence of positive literature in determining why it is insufficient upon which to assert a nexus in this case. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). There is no indication that the examiner was not fully aware of the Veteran's medical history or misstated any relevant fact in formulating the negative nexus opinion, or any such similar basis upon which to challenge the competency of his findings. In contrast, the only positive nexus opinion of record is that implicitly offered by the appellant (and the Veteran during his lifetime). However, both parties lack the medical expertise to offer competent opinions as to the etiology of the Veteran's brain cancer. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, greater probative value is afforded to the August 2016 opinion is concluding that there is no nexus between the Veteran's exposure to contaminated water at Camp Lejeune and his subsequent brain cancer. The Board has also considered the evidence provided by the appellant in support of this appeal, to include multiple prior Board decisions wherein service connection was awarded under similar circumstances. However, the Board's decisions are non-precedential, such that each case is adjudicated upon the unique evidence of record. Here, thoughtful consideration as to the existing evidence of record does not support a favorable outcome. The appellant has also submitted an article which addresses the potential health effects of exposure to vinyl chloride. However, this article is based solely upon the positive findings of one study conducted in 2003. Thus, the article falls far short of establishing a nexus given the specific circumstances of this case, particularly as the actual circumstances and findings of the referenced study are not discussed therein. Moreover, the August 2016 opinion was offered more than a decade after the 2003 study, such that advances in the medical community were fully contemplated therein. In affording greatest probative value to the August 2016 negative opinion, it is thus found that the preponderance of the evidence weighs against the finding of a nexus between the Veteran's brain cancer and his military service, and the evidence is not in approximate balance. Accordingly, the benefit-of-the-doubt rule is not for application and the appeal seeking service connection for the cause of the Veteran's death is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the TDIU appeal. Specifically, the record is in controversy as to whether the Veteran was rendered wheelchair-bound by his nonservice-connected brain cancer or his service-connected lower extremity, knee, and back disabilities in the years preceding his death. As he was previously employed as a truck driver, the cause of his immobility is a critical inquiry in assessing the impact of his service-connected disabilities on his occupational functioning. Thus, an addendum opinion from a medical professional is required on this point. The matter is REMANDED for the following action: Obtain an addendum opinion for the questions below. The claims file and a copy of this remand must be made available for review. The examiner is hereby advised that the Veteran is deceased and thus unavailable for contemporaneous evaluation. Specifically, the examiner should provide an opinion as to the functional impairment caused by the Veteran's service-connected disabilities, in light of his level of education, special training, and previous work experience, as reflected by the evidence of record. The VA examiner should comment on the Veteran's ability to perform physical or sedentary work based on his level of experience and education. The VA examiner is also asked to assess whether the Veteran's wheelchair use was due to his nonservice-connected brain cancer or his service-connected disabilities. The examiner should provide a complete rationale for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.