Citation NR: 9600607 Decision Date: 01/17/96 Archive Date: 02/06/96 DOCKET NO. 90-21 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: Jeffrey E. McFadden, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant, and S. L. V., Ph.D. ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran’s active military service extended from January 1957 to January 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A June 1987 rating decision denied entitlement to burial benefits and a July 1987 rating decision denied service connection for the cause of the veteran’s death. The appellant’s notice of disagreement with those decisions was received prior to November 1988. In December 1988, the Board of Veterans’ Appeals (Board) denied service connection for cause of death to include on a radiation basis. In September 1989, the appellant filed a “Notice of Disagreement” with the Board’s December 1988 decision. In a decision dated in October 1989, the RO refused to reopen her claim for service connection for the cause of the veteran’s death. She disagreed with this determination the following month and thereafter perfected an appeal. In June 1991, the Board vacated the December 1988 decision and entered a decision denying service connection for the cause of the veteran’s death on the basis that alpha- 1 antitrypsin deficiency and associated emphysematous lung disease were not clinically manifested until many years following separation from service and were not etiologically related to any event of service origin. The appellant appealed to the United States Court of Veterans Appeals (Court). In September 1993, the Court vacated the Board’s June 1991 decision and remanded the case to the Board for further development and readjudication in accordance with the Court’s order. In its order, the Court, with certain enumerated modifications, incorporated by reference the appellant’s pleading before the Court dated October 28, 1992, relating to the further development and adjudication of the appellant’s claim. The Court retained jurisdiction. [citation redacted]. At a hearing before the Board in April 1991, the appellant, through her representative, withdrew her claim for service connection for the cause of the veteran’s death as a result of exposure to ionizing radiation in service. In April 1994, a hearing was held before Joaquin Aguayo- Pereles, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The case was remanded by the Board in July 1994, for: a copy of the marriage certificate; private, service department and VA medical records; historical information from the appellant; and medical opinions. A copy of the marriage certificate was obtained. Records were received from Richard F. Lockey, M.D., and other sources. The RO attempted to get records from other various sources listed by the appellant. Some listed sources and the National Personnel Records Center reported having no additional records. The requested opinions were obtained. The requested development has been completed to the extent possible. The Board now proceeds with its review of the appeal. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she is the widow of the veteran and that the RO committed error in denying service connection for the cause of the veteran’s death. She argues that the veteran had a genetic predisposition to emphysema called alpha-1 antitrypsin deficiency and that his emphysema was triggered or accelerated by the dusty and sandy conditions of his service as a jet engine mechanic at Walker Air Force Base, Roswell, New Mexico, from 1957 to 1960. It is maintained that he developed silicosis as a result of service and that his silicosis was initially manifested about five years following separation from service. It is asserted that the silicosis contributed substantially or materially to cause his death. It is also claimed that silicosis acquired as a result of service acted in combination with the diagnosed alpha-1 antitrypsin deficiency to accelerate and aggravate the pathological changes to the lungs caused by associated emphysema thus leading to his demise. It is maintained that the veteran was unable to naturally inhibit the pathological changes caused by silica and associated emphysema because of a genetic predisposition to a deficiency in alpha-1 antitrypsin, an enzyme inhibitor. In effect, the silicosis precipitated emphysematous lung changes that were not checked or retarded because of the deficiency in the natural protein that would have inhibited them. The attorney-representative contends in his brief that the veteran had homozygous alpha-1 antitrypsin deficiency which rendered him even more vulnerable to the toxic effects of airborne silica. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claim of service connection for the cause of the veteran’s death. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appeal. 2. The veteran died in December 1986, at age 47. The immediate cause of death was listed as pulmonary hypertension, due to chronic and acute respiratory failure, due to alpha-1 anti-trypsin deficiency. 3. Silicosis acquired during the veteran’s active military service rendered him less able to resist the primary causes of death. CONCLUSION OF LAW A disability of service inception or aggravation contributed to cause the veteran’s death. 38 U.S.C.A. §§ 101, 1131, 1310 (West 1991); 38 C.F.R. §§ 3.303, 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant’s claim is “well grounded” within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). An increased rate of burial benefits and dependency and indemnity compensation may be paid if the cause of the veteran’s death is service-connected. 38 U.S.C.A. §§ 1310, 2307 (West 1991). Service connection for the cause of the veteran’s death may be granted if a disability incurred in or aggravated by service caused 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. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). At the time of the veteran’s death, service connection had not been established for any particular disability. The death certificate shows that the veteran died in December 1986, at age 47. The immediate cause of death was listed as pulmonary hypertension, due to chronic and acute respiratory failure due to alpha-1 anti-trypsin deficiency. No other significant condition was listed as contributing to death. A grant of service connection for the cause of the veteran’s death does not require the service-connected disability to be the primary cause of death. The benefit can be granted if a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c) (1994). In this case, it is essentially contended that silicosis contributed to cause the veteran’s death and that the silicosis is service-connected. To establish service connection, the record must show a current disability as diagnosed by a physician, a disease or injury during service, and a connection between the two. 38 U.S.C.A. §§ 101, 1131 (West 1991). See Caluza v. Brown, 7 Vet.App. 498 (1995). In first determining whether the veteran had silicosis, the Board notes one recent opinion against the diagnosis. The March 1995 report from the Chief, Pathology & Laboratory Medicine, at a VA Medical Center (VAMC) shows that he reviewed tissue slides from the veteran’s lungs and found a small number of birefringent crystals consistent with silica. He did not diagnose silicosis, but rather concluded that the silica did not contribute significantly to the veteran’s terminal illness and there was no evidence of preexisting silicotic lung disease. The evidence supporting a diagnosis of silicosis includes a June 1990 report by Henry A. Azar, M.D., of the Department of Pathology, University of South Florida. He reported that the slides showed considerable amounts of needle like deposits consistent with silica dust. It was his interpretation that silicosis was indicated. Also in support of the diagnosis of silicosis are the statements of Rafael A. Gomez, M.D., dated in December 1990 and February 1991. These statements are to the effect that the x-ray films revealed that the veteran’s lungs had fibrotic nodules consistent with silicosis. At the 1994 Board hearing, the appellant’s attorney submitted many treatises bearing on the subject. One treatise stated that the silicotic nodule had an unmistakable appearance. Brief of Appellant-Exhibits, Volume II, Tab 29, page R. 0590. In evaluating this evidence, the Board finds that the x-ray findings resolve the differences between the pathologist in favor of a diagnosis of silicosis. Next the Board must determine whether there was a disease or injury during service. In this case, there is no testimony of the veteran as to injury; there are no reports of witnesses who actually knew of disease or injury to the veteran during service; and there are no medical records of disease or injury during service. However, since the veteran’s service medical records were reportedly destroyed by a fire at the National Personnel Records Center, and additional searches have not produced any records, VA must consider other evidence. See Cuevas v. Principi, 3 Vet.App. 542 (1992). By their very nature, the fibrotic lesions associated with silicosis must have existed for some time. 38 C.F.R. § 3.303(c) (1994). The question then becomes one of when did the injury happen. The appellant has testified to the effect that the veteran did not have significant exposure to silica after service. At her April 1994 Board hearing, she testified that she married him shortly after service. She said that following service, the veteran worked in Maryland, as a vending machine maintenanceman. He continued that work after moving to Florida. He then went into dental equipment repair and then sales. At the hearing, the attorney introduced statements from 4 servicemen who were at the veteran’s base in New Mexico at the same time he was. While none professed personal knowledge of the veteran, they all described serious problems with dust. There was information to the effect that the veteran’s duties would require him to work outside. The veteran’s sister has also stated that their mother visited the veteran’s base and, on her return, told the sister of pervasive dust at the base. At the April 1994 Board hearing, an industrial hygienist, Sandor L. Vandor, Ph.D., testified that the exposure to sand dust during the veteran’s term of service would have resulted in silicosis and that the resultant impairment might not be noted until many years later. The evidence of injury during service is only circumstantial. Nevertheless, it is sufficient to put the issue in equipoise. When the positive and negative evidence on an issue are in approximate balance, VA must afford the appellant the benefit of the doubt. 38 U.S.C.A. § 5107(b) (West 1991). Therefore, the Board finds that the veteran’s lungs were injured by silica during service. The third requirement for service connection is a connection between the current disability and the disease or injury during service. This can be accomplished by expert testimony. Dr. Vandor’s testimony linked the veteran’s dust exposure during service to the silicosis demonstrated in 1986. The doctor’s explanation of the slowly developing disability was supported by several treatises submitted at the hearing. One treatise indicated that silicosis advanced more rapidly in patients with alpha 1 antitrypsin deficiency than in other patients. Brief of Appellant-Exhibits, Volume II, Tab 33, page R. 0642. The treatises also indicated that silica injury produced chronic residuals. 38 C.F.R. § 3.303(b). Therefore, the Board finds that a connection is established between the silica exposure and injury during service and the silicosis found at the time of the veteran’s death. The next matter to be resolved is whether the silicosis contributed substantially or materially to cause death. It need not be the primary cause or be related to the primary cause. Rather the evidence need only show that it aided or lent assistance to cause death. 38 C.F.R. § 3.312(c) (1994). The January 1992 notes of the veteran’s personal physician, Richard F. Lockey, M.D., contain an opinion to the effect that the veteran did not die of any disease other than the alpha 1 antitrypsin deficiency associated with emphysema and smoking. A March 1995 VA pathology report contained the opinion of a medical doctor to the effect that the silica did not contribute significantly to the veteran’s terminal illness. The file also contains a March 1995 opinion from another VA physician, who stated that the silicosis, if present, did not appear to be the predominant factor in the veteran’s death. However, the physician did not comment as to whether the silicosis contributed to bring about death. The testimony of Dr. Vandor, at the April 1994 Board hearing was to the effect that the silicosis would have contributed to bring about the veteran’s demise. The December 1990 and February 1991 statements of Dr. Gomez are to the effect that the alpha 1 antitrypsin deficiency produced emphysema and that the veteran also had silicosis. Because of the respiratory impairment related to these two preexisting disorders, the veteran was not able to survive the additional respiratory impairment of the pneumonia, which was the primary cause of death. In his opinion, Dr. Gomez reported multiple fibrotic nodules, related to silicosis, profusely distributed throughout both lung fields. Fibrosis was also reported on autopsy. This objective finding of fibrosis could be consistent respiratory impairment and supports Dr. Gomez’s opinion. See 38 C.F.R. Part 4, Code 6801 (1994). Consequently, the Board finds that evidence of record supports a conclusion that fibrosis due to silicosis incurred in service impaired the veteran’s ability to breath and contributed to his death from respiratory causes. This contribution was substantial and material and warrants service connection for the cause of the veteran’s death. ORDER Service connection for the cause of the veteran’s death is granted. JOAQUIN AGUAYO-PERELES Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -