Citation Nr: 0810846 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-33 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cause of death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from August 1943 to August 1945. The appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought on appeal. In February 2008, the appellant appeared before the undersigned Veterans Law Judge and testified regarding her appeal. A transcript is of record. By a February 29, 2008 ruling, the undersigned Veterans Law Judge granted the appellant's motion to advance this case on the docket based on a finding of good cause, namely the advanced age of the appellant. See 38 C.F.R. § 20.900(c). In her April 2005 notice of disagreement, the appellant asserted that the veteran was misdiagnosed or improperly medically treated by VA. This matter has not been addressed by the RO, and it is therefore REFERRED for appropriate action. FINDINGS OF FACT 1. At the time of his death, the veteran was not in receipt of service connection for any disability. 2. The immediate cause of the veteran's death was metastatic squamous cell carcinoma. 3. Metastatic squamous cell carcinoma did not have its onset during active service or result from disease or injury in service, or from a service-connected disability. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2007); 38 C.F.R. § 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the claim, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and her representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of a letter from the RO to the appellant dated in September 2004. This letter effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the appellant about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the appellant about the information and evidence VA would seek to provide; (3) informing the appellant about the information and evidence she was expected to provide; and (4) requesting the appellant provide any evidence in her possession that pertains to her claim. Under Dingess v. Nicholson, 19 Vet. App. 473 (2006), VA must also provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although the RO did not advise the appellant of such information, because the claim is being denied, no disability rating or effective date for service connection for the cause of death will be assigned. Proceeding with the appeal presently does not therefore inure to the appellant's prejudice. The appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide her claim. As such, all relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained and the case is ready for appellate review. The Merits of the Claim The appellant contended during her February 2008 Board hearing that her husband was exposed to asbestos, petrochemicals, and sun aboard ship and that as a result the veteran developed myasthenia gravis and metastatic squamous cell carcinoma. The veteran had previously filed a claim for service connection for myasthenia gravis which was denied in June 2002. The veteran died in 2002 due to metastatic squamous cell carcinoma. At the time of his death, the veteran was not service-connected for any disabilities. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and must regretfully deny the appeal. In order to establish service connection for the cause of death of the veteran, the evidence must establish that a disability of service origin caused, hastened, or substantially and materially contributed to the veteran's death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service- connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The principal cause of death is one which singularly or jointly with some other condition was the immediate cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Accordingly, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, a service-connected disability includes certain chronic diseases, such as myocarditis and malignant tumors, which may be presumed to have been incurred in service if it became manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection in the context of this claim, once the death of the veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999) (Both discussing the factors of service connection). By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). "Competent lay evidence" means "any evidence not requiring that the proponent have specialized education, training, or experience." Lay evidence is competent "if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation); see Layno v. Brown, 6 Vet. App. 465, 470 (1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). The veteran had two years of military service with a variety of duties as a member of the Merchant Marine. His duties included those of "wiper," oiler, pumpman, and fireman/watertender. In a January 2002 statement, the veteran reported he worked for a railroad company as a fireman from October 1945 to July 1960 and was self-employed in the wholesale gasoline distribution business from July 1960 to January 1991. The veteran stated although he delivered some petroleum products, he also employed 2 or 3 people that did most of the deliveries. The veteran was diagnosed in 1992 with myasthenia gravis. In mid-2002, the veteran was diagnosed with head and neck squamous cell carcinoma. He died from the disorder several months after the diagnosis was rendered. The death certificate indicates that the metastatic squamous cell carcinoma was the primary, or "immediate" cause of death, and there were no listed "underlying" causes, or "other significant conditions contributing to death but not resulting in the underlying cause. VA medical treatment records dated from October 2000 to August 2002, including a February 2005 VA medical opinion as to cause of death, are devoid of any evidence which indicated the cause of the veteran's myasthenia gravis and metastatic squamous cell carcinoma were etiologically related to service. In a May 2002 statement, a private physician, Dr. RBV, stated he had cared for the veteran since 1992 and that the veteran had a diagnosis of myasthenia gravis. Dr. RBV stated it was his understanding that the veteran served in the Merchant Marines with intermittent exposure to petrochemical fuels and other potential toxins such as asbestos. Dr. RBV stated there was data which suggested that exposure to these compounds could cause dysfunction in the person's immune system resulting in immune mediated disorders such as myasthenia gravis and potentially even some cancers. Dr. RBV opined that the veteran's myasthenia gravis and possibly his cancer was likely related to his exposure to these chemical compounds during his service as a Merchant Marine. In February 2004, the veteran's wife submitted a newspaper article concerning lead exposure and a connection to cataracts. In a February 2005 VA medical opinion, a VA examiner stated he had reviewed the entire contents of the claims file and he found no reasonable medical link between the veteran's military service and the claimed conditions. Shipwash v. Brown, 8 Vet.App. 218, 222 (1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). He observed that to link these conditions to his exposure to several substances would be mere speculation on his part, or for anyone. The appellant has proceeded with several theories of entitlement as to the cause of the veteran's death. She contends that the veteran was exposed to asbestos while aboard a Navy ship during service; and that this exposure later led to the development of myasthenia gravis and metastatic squamous cell carcinoma. See February 2008 BVA hearing transcript, p. 2; April 2005 notice of disagreement. Specifically, the appellant asserts that the veteran was a Merchant Marine who served on various ships and thus was exposed to asbestos. Secondarily, the appellant asserts that her husband was also exposed to various petrochemicals which caused his myasthenia gravis and metastatic squamous cell carcinoma. Finally, the appellant asserts that her husband contracted metastatic squamous cell carcinoma from sun exposure while serving aboard ship which allowed the sun's rays to be enhanced from reflection off the water. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 9 (Jan. 7, 2007) ("VA Manual"). Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. VAOPGCPREC 4-00 (Apr. 13, 2000). The VA Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Id., at Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire- proofing materials, and thermal insulation. Id. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id., at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id., at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. Where the determinative issue involves medical causation or medical diagnosis, competent medical evidence suggestive of such a linkage is required, and the appellant's medically untrained opinion is not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As to disorders related to asbestos exposure, the absence of symptomatology during service or for many years following separation does not preclude the eventual development of the disease. The latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the time length of exposure is not material, as individuals with relatively brief exposures of less than one month have developed asbestos-related disorders. See VA Adjudication Procedure Manual, M21-1, Part VI, 7.21(b)(2) (rescinded on 12-13-05 by M21-1MR, Part III, IV and V). A review of the veteran's service records are negative for a finding that the veteran was exposed to asbestos in service. Moreover, none of the medical evidence of record shows a diagnosis of asbestosis or an asbestos-related disease. The veteran served in the Merchant Marines with the primary military occupational specialties of wiper, oiler, pumpman, and fireman/watertender. There is no presumption of asbestos exposure merely as a result of having served aboard a ship. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). However, even if the Board assumes that the veteran was exposed to asbestos during his travel, service connection for the veteran's cause of death could not be granted in this case as there is no competent medical evidence that establishes any causative relationship between the veteran's assumed asbestos exposure and the veteran's myasthenia gravis and metastatic squamous cell carcinoma. The only post-service medical evidence addressing this issue consists of a letter from Dr. RBV, who stated there was data which suggested that exposures to these compounds could cause dysfunction in the person's immune system resulting in immune mediated disorders such as myasthenia gravis and potentially even some cancers. Dr. RBV opined that the veteran's myasthenia gravis and possibly his cancer was likely related to his exposure to these chemical compounds during his service as a Merchant Marine. Again, assuming without deciding the veteran was exposed to asbestos and petroleum or chemical fumes to some degree, Dr. RBV's opinion is not based upon any data as applied to the veteran - i.e., there is no information indicating to what degree such exposure occurred; the course of development of any disorders which may have been incurred. Indeed, Dr. RBV's opinion as to exposure (i.e., the in-service event) is without foundation and is speculative. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). Such speculation as to exposure undermines the probative weight assigned to his opinion. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Because the factual basis of the opinion is not supported, the medical conclusion which is itself speculative is of no probative value, As to establishing entitlement to service connection for the cause of the veteran's death based on the appellant's alternative theories of exposure to petrochemicals and sun, the Board finds that these arguments fail as well. There is no evidence in the claims file that supports the diagnosis of myasthenia gravis and metastatic squamous cell carcinoma with a link to petrochemical or sun exposure. Further, the veteran worked as a wholesale gasoline distributor for over 30 years. There is no evidence of prolonged sun exposure or sunburn (1) during military service, which (2) resulted in mysasthenia gravis or skin cancer, both of which must be demonstrated or at least approximated in order for a grant of service connection to issue. Pond v. West, 12 Vet. App. 341, 346 (1999); Rose v. West, 11 Vet. App. 169, 171 (1998) ((In order to establish service connection, there must be (1) evidence of an injury in military service or a disease that began in or was made worse during military service or one which would qualify for presumptive service connection; (2) competent evidence of a current physical or mental disability; and, (3) competent evidence of a relationship between the veteran's current disability and the in-service event).) There is no medical evidence of record that suggests any relationship between the disease processes that influenced the veteran's demise and his military service. Finally, the Board notes that the veteran did not manifest the disorder of metastatic squamous cell carcinoma that led to his death until 2002, more than 57 years after his separation from service and only four months prior to his death. Therefore, presumptive service connection is not warranted for a malignant tumor manifested within one year of the veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. There can be no doubt from review of the record that the veteran rendered honorable and faithful service for which the Board is grateful, and the appellant is sincere in her belief that the veteran's death was related to the service-connected disorder. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cause of death is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs