Citation Nr: 0931621 Decision Date: 08/24/09 Archive Date: 09/02/09 DOCKET NO. 07-23 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to July 1957. The appellant seeks benefits as the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran's death. FINDINGS OF FACT 1. Following separation from service, the Veteran developed amyotrophic lateral sclerosis (ALS), from which he died in May 2006. 2. There is a positive association between military service and the development of ALS. CONCLUSION OF LAW The Veteran's ALS is presumed to have developed as a result of his active service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.309, 3.318 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2008). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2008). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially. 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 C.F.R. § 3.312(c) (2008). Within this framework, the Board must consider the laws that otherwise govern the issue. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2008). A current disability must be related to service or to an incident of service origin. A veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service and the disability. Boyer v. West, 210 F.3d 1322 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). Service connection may be granted on a presumptive basis for certain chronic diseases, including malignant tumors, if they are shown to be manifest to a degree of 10 percent or more within one year following the veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2008). The Veteran died in May 2006. A May 2006 death certificate listed his immediate cause of death as ALS. Mesothelioma was listed as contributing to death but not resulting in the underlying cause. The Veteran was not service-connected for any condition prior to his death. The appellant contends that the Veteran developed ALS as a result of his active service. Alternatively, she asserts that he developed mesothelioma as a result of exposure to asbestos in service, and that mesothelioma materially contributed to his death. In September 2008, an interim final rule was published in the Federal Register amending VA adjudication regulations to establish a presumption of service connection for amyotrophic lateral sclerosis (ALS) for any veteran who develops the disease at any time after separation from service. See Presumption of Service Connection for Amyotrophic Lateral Sclerosis, 73 Fed. Reg. 54691 (2008). This amendment was necessary to implement a decision by the Secretary to establish such a presumption based primarily upon a November 2006 report by the National Academy of Sciences Institute of Medicine (IOM) on the association between active service and ALS. The findings noted in the November 2006 IOM report suggest that military service in general is related to the development of ALS. The interim final rule establishes a new regulation, 38 CFR 3.318 (2008), that provides that the development of ALS at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease, if the veteran had active, continuous service of 90 days or more. The presumption of service connection for ALS does not apply, however, if there is affirmative evidence that ALS was not incurred during or aggravated by such service or affirmative evidence that ALS was caused by the veteran's own willful misconduct. The new regulation was published in an interim final rulemaking to implement immediately the Secretary's decision to establish a presumption of service connection for ALS for veterans with that diagnosis. The new § 3.318 applies to all applications for benefits that are received by VA on or after September 23, 2008, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on September 23, 2008. The appellant's claim for service connection for the cause of the Veteran's death as a result of ALS was pending before VA on September 23, 2008. There is no affirmative evidence that ALS was not incurred during or aggravated by the Veteran's service or affirmative evidence demonstrating that ALS was caused by the Veteran's own willful misconduct. As the claim was pending as of the effective date of the implementation of the presumption of service connection for ALS, and there is no evidence against the presumption, the presumption applies, and the appellant is entitled to service connection for the cause of the Veteran's death. Given the applicability of the presumption of service connection for ALS, the Board need not address the appellant's contentions regarding whether the Veteran's mesothelioma materially contributed to his death. As the preponderance of the evidence is in favor of the appellant's claim, service connection for the cause of the Veteran's death is warranted. The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the appellant. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs