Citation Nr: 22016103 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-09 593 DATE: March 21, 2022 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to service connected burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to June 1967, and from November 1990 to May 1991, with service in Southwest Asia. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Pension Management Center (PMC). In November 2019 the Board stayed adjudication of the appeal, as it was affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act). Subsequently, the stay of adjudication has been lifted. The issues on appeal were again before the Board in February 2020, and remanded for further development. The matters have been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to Service Connection for the Veteran's Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death is based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. In this case, the Veteran died in August 2013. His death certificate lists the underlying cause of death as acute respiratory failure and chronic obstructive pulmonary disease (COPD) exacerbation; and other significant conditions as diabetes mellitus type II (DM II), and peripheral vascular disease. At the time of his death, he was service-connected for right inguinal hernia with a noncompensable rating. The Appellant asserts that the Veteran's cause of death is related to his in-service exposure to herbicides. The Board notes that the Veteran's service during the Vietnam war era was spent aboard the USS Lexington. See Military Personnel Record, July 2007 (reflecting service on the USS Lexington from June 23, 1964 to June 7, 1967). The Board notes that in a July 2021 VA memorandum, herbicide exposure could not be conceded as the evidence of record does not show that the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Appellant also asserts that the Veteran's cause of death is related to his exposure to asbestos aboard the USS Lexington. In the February 2020 decision, the Board found that it may be reasonably conceded that the Veteran was exposed to asbestos during his active duty service as an Aviation Boatswains Mate during his first period of active duty. Additionally, the Appellant asserts that the Veteran's environmental exposures as a firefighter, during his Gulf War service, caused or contributed to his death. In September 2021, in response to the February 2020 Board remand, a VA opinion was obtained. The examiner noted the Veteran's cause of death was COPD exacerbation DM II peripheral vascular disease, and that he had a long history of smoking. The examiner noted that the Veteran's medical record showed no evidence of asbestosis or asbestos related pulmonary disease. The examiner explained that cigarette smoking, and amount and duration of smoking contribute to the severity of COPD/Emphysema. Regarding environmental exposure, the examiner cited a 2011 Institute of Medicine (IOM) report (Long-Term Health Consequences of Exposure to Burn Pits and environmental hazards (dust, sand) in Iraq and Afghanistan), which suggests a link between exposure to combustion products from Burn Pits and reduced lung function, and not respiratory disease. The examiner explained that the report found inadequate or insufficient evidence of a relation between exposure to combustion products and environmental hazards, certain conditions, and adverse reproductive and developmental outcomes. In regard to asbestos exposure, the examiner stated that exposure to asbestos does not cause airway obstruction, and the magnitude of the asbestos effect on airway function, by itself, was unlikely to result in functional impairment or COPD. Based on review of the medical records and medical research, the examiner opined that it was less likely as not that asbestos exposure or environmental exposures in Southwest Asia substantially, materially contributed to death or that it combined to cause death; or that it aided or lent assistance to the production of death. Subsequent to the September 2021 opinion, the Appellant's representative argued in February 2022 that the Veteran's cause of death was directly related to his primary military occupational specialty (MOS) as a firefighter. Specifically, it was argued that firefighting foam composed of human-made chemicals known as per-and polyfluoroalkyl substances (PFAS) and aqueous film-forming foam (AFFF) caused his death. The representative argued that military firefighters were disproportionately exposed to PFAS pollution, and stated that research by the Environmental Working Group (EWG) found that many of the highest concentrations of PFAS in the United States were detected on or around military installations. In this case, the Board finds that remand is warranted in order to obtain an addendum VA opinion to address the contentions set forth in February 2022, asserting that the Veteran's cause of death was related to his military duties related to being a firefighter and specifically being exposed to PFAS and AFFF. 2. Entitlement to Service Connected Burial Benefits The Board notes that the Appellant was awarded non-service connected burial benefits in the amount of $722 in an August 2015 administrative decision for reimbursement of funeral expenses for a veteran whose death was not related to military service and was hospitalized by the VA at the time of his death. In order to award service-connected burial benefits, service connection for the cause of the Veteran's death must be in effect. See 38 C.F.R. § 3.1700. As the Board is remanded the issue regarding the cause of the Veteran's death, this issue regarding entitlement to service connected burial benefits must be deferred. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding whether the Veteran's cause of death is related to his active duty service, to include as related to his military duties as a firefighter and specifically being exposed to PFAS and AFFF, as outlined above. Following a review of the claims file, the examiner must opine as to whether it is at least as likely as not that the Veteran's COPD was etiologically related to any incident of service, to include his military duties as a firefighter and specifically to include any exposure to PFAS and AFFF. The claims file should be made available to the examiner for review in conjunction with the opinion, and the examiner should note such review. A complete rationale must be provided for all opinions given. R. M. KELLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.