Citation Nr: 22017526 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-49 506 DATE: March 25, 2022 ORDER Entitlement to service connection for cause of death is granted. FINDING OF FACT The Veteran's cirrhosis of the liver was caused by exposure to contaminants during a period of active duty for training (ACDUTRA), which contributed substantially and materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. § 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served a period of active duty for training (ACDUTRA) from February 1962 to August 1962. The Veteran died in December 2011, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for cause of death. In March 2014, the appellant filed a notice of disagreement, and in September 2017 was issued a statement of the case and perfected her appeal to the Board. The appellant requested a virtual Board hearing with a Veterans Law Judge (VLJ) which was scheduled for March 2022. However, in a February 2022 letter, the appellant withdrew her request for a hearing with a VLJ. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). SERVICE CONNECTION FOR CAUSE OF DEATH In an October 2013 statement, the appellant indicated that she believed that the Veteran's cause of death was a result of his exposure to toxins in Camp Lejeune. Initially, the Board notes that the RO conceded exposure to contaminated water at Camp Lejeune. The RO also adjudicated the claim on the merits, implicitly finding that it was timely under 38 U.S.C. § 5121(c), and the Board will not disturb this finding. Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310 (a); 38 C.F.R. § 3.5 (a)(1). The death of a veteran will be considered as having been due to a service connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death, or was related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310 (a). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To receive VA benefits, a payee must be a "veteran," defined, in part, as "a person who served in the active military, naval, air, or space service." 38 U.S.C. § 101 (2). The term "active military, naval, air or space service" includes active duty, and "any period of active duty for training [(ACDUTRA)] during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training [(INACDUTRA)] during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a); see also McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995), for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene, perchloroethylene, benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307 (a)(7). This presumption may be rebutted by affirmative evidence to the contrary. The eight specified diseases are: kidney cancer; liver cancer; non-Hodgkin's lymphoma; adult leukemia; multiple myeloma; Parkinson's disease; aplastic anemia and other myelodysplastic syndromes; and, bladder cancer. See 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The Veteran died in December 2011, and his death certificate lists the immediate cause of death as multisystem failure due to cirrhosis of the liver. The Veteran's DD-214 reflects that the Veteran's military occupational specialty was as a basic infantryman, and that he served a 6 month period of ACDUTRA in Camp Lejeune. The Veteran's service treatment records do not reflect treatment for, or complaints of a liver disability, or symptoms associated with a liver disability, and his August 1962 medical examination report upon discharge from his period of ACDUTRA is normal. In March 2014, the appellant submitted a press article and Camp Lejeune report which addressed the presence of toxins in the drinking water in the U.S. Marine Corps Base in Camp Lejeune, North Carolina. The article and report indicate that liver disease is among the non-cancerous diseases associated with the chemicals which contaminated the water in Camp Lejeune. In a March 2014 letter, the Veteran's private physician reported that the Veteran had a history of idiopathic cirrhosis complicated by bleeding esophageal varices, and ascites, and eventually died of progressive liver failure with jaundice. She stated that the Veteran had a history of exposure to contaminated drinking water at Camp Lejeune which may have contributed to his liver disease. While the evidence of record reflects that the Veteran had ACDUTRA service in Camp Lejeune for a period exceeding 30 days during the requisite period, his cirrhosis of the liver is not among the diseases under 3.307(a)(7) for which service connection is presumptive due to exposure to water contaminants in Camp Lejeune. However, the evidence is at least evenly balanced as to whether the Veteran's cirrhosis of the liver is related to exposure to contaminants in Camp Lejeune. To this end, the appellant has provided treatise material which provides evidence that liver disease was among the non-cancerous disease associated with the chemicals which contaminated the water in Camp Lejeune. Medical article and treatise evidence "can provide important support when combined with an opinion of a medical professional." Sacks v. West, 11 Vet. App. 314, 317 (1998). Additionally, the Veteran's private physician opined that the Veteran's history of exposure to contaminated drinking water at Camp Lejeune may have contributed to his liver disease. While the private physician's opinion may not, by itself, establish a nexus between the Veteran's liver disease and exposure to contaminants in Camp Lejeune, it constitutes evidence in support of the claim, and taken together with the treatise material, is entitled to at least some probative weight. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains"). There is no negative nexus medical opinion of record. The above evidence reflects that the Veteran died from multisystem failure due to cirrhosis of the liver, and was the immediate cause of death. The evidence is also at least evenly balanced that the Veteran's cause of death, cirrhosis of the liver, was caused by exposure to contaminants during a period of ACDUTRA at Camp Lejeune. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for the cause of the Veteran's death is warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.