92 Decision Citation: BVA 92-26449 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-49 195 ) DATE ) ) ) THE ISSUE Entitlement to service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of December 3, 1990, from the Denver, Colorado, regional office (hereinafter RO). The notice of disagreement was received on December 17, 1990. The statement of the case was issued on January 8, 1991. The substantive appeal was received on January 28, 1991. A supplemental statement of the case was issued on March 11, 1991. A hearing was held before a hearing officer at the RO in April 1991. The appeal was received at the Board on November 22, 1991, and docketed on November 26, 1991. The appellant has been represented throughout her appeal by the Disabled American Veterans, to which the file was referred. That organization submitted additional written argument to the Board on March 19, 1992, and the case is now ready for appellate review. The veteran had active service from October 8, 1958, to November 22, 1962, and from March 26, 1964, to March 31, 1987. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in not granting service connection for the cause of her spouse's death. She contends that his exposure to asbestos during his career in the United States Navy was the underlying cause of the lung cancer which resulted in his death. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the claim for service connection for residuals of exposure to asbestos as the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The veteran served in the United States Navy as an electrician's mate and was exposed to asbestos. 3. The veteran's death was from metastatic squamous cell carcinoma; the primary site was the right upper lobe of the lung. 4. Autopsy findings included fibrous plaques of parietal pleura which are a common manifestation of asbestos exposure. CONCLUSIONS OF LAW An asbestos-related disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) A service connected disorder caused or contributed materially or substantially to cause the veteran's death. 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We have found that 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 that is plausible. Furthermore, the appellant has not indicated that any probative evidence not already associated with the claims folder is available, and we accordingly find that the duty to assist her, mandated by the aforementioned section, has been satisfied. The appellant seeks service connection for the cause of death of her husband, who had 27 years of active service and retired in March 1987. A copy of the death certificate shows that the veteran died on April [redacted] 1990, due to metastatic squamous cell carcinoma. At the time of death, he was service connected for pulmonary tuberculosis, evaluated at 10 percent; bilateral hearing loss, sensorineural, evaluated at 10 percent; hypertrophic degenerative disease, both sacroiliacs and right knee, evaluated as noncompensable; and post-operative residuals, right inguinal hernia, evaluated as noncompensable. The combined rating was 20 percent. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.312. The appellant, the veteran's widow, filed a claim for service connection for cause of death. The service records show that the veteran was an Electrician Mate, an occupation historically associated with asbestos exposure. The record shows that the veteran was diagnosed with cancer of the lung in August 1989, following several months of symptoms. His death occurred on April [redacted] 1990. An autopsy revealed the site of the primary tumor to have been in the right upper lobe of the lung. Other findings included fibrous plaques of perietal pleura, gross evidence of mild emphysema (bullae and prominence of the bronchi) and some localized interstitial fibrosis considered to be secondary to radiation therapy. The claims file was referred to a Board medical adviser for a medical opinion. After review of the claims file, the physician concluded that "The veteran's death from cancer of the lung in 1990 cannot be disassociated from his inservice exposure to asbestos." He noted that "Autopsy-proven pleural plaques occurring in this veteran must be taken as evidence of asbestos exposure." In support of his conclusion, he offered: "Pleural plaques are currently the most common manifestation of exposure to asbestos." Mossman, BT and Gee, JBL, et al: Asbestos-related disease. N Engl J Med 1989; 320:1726. "The association between pleural plaque and asbestos exposure has been amply confirmed by population studies and appears to be dose related." W. McCaughey, M.D., et al., Tumors and Pseudotumors of the Serous Membranes [AFIP Atlas of Tumor Pathology], 113 (Fascicle 20, 1985). "(N)oncalcified pleural plaque formation is probably the commonest roentgenograhic manifestation of asbestos-related disease"; the "appearance of multiple pleural plaques is so specific that exposure to asbestos definitely can be concluded, provided that there has been no occupational history of exposure to related minerals talc or mica." R. Fraser, M.D., et al., Diagnosis of Diseases of the Chest, 2335 (3rd ed. 1990) His report further stated: Asbestos, especially the chrysotile type, exerts a powerful synergistic effect in leading to bronchogenic carcinoma in individuals who also smoke. One reference notes that it has been calculated that even relatively brief exposure to heavy asbestos contamination increases the risk of lung cancer ten-fold in a smoker. J. Holland, M. D. and E. Frei III, M.D., et al., Cancer Medicine, 74 (2nd ed. 1982). Early epidemiologic studies indicated that the effects of asbestos in smoking combine in a multiplicative fashion, rather than additive, to produce lung cancer. Mossman, supra, at 1724; McCaughey, supra, at 24. ... There is also evidence that low level exposure to asbestos, comparable to that which can cause mesothelioma, may contribute to the occurrence of carcinoma of the lung. Id., at 24. The veteran was exposed to both cigarettes and asbestos, the latter during his lengthy period of military service. This combined exposure put the veteran at significant increased risk for developing bronchogenic carcinoma. In view of the foregoing, the record establishes a probability that asbestos exposure was the etiology of the squamous cell carcinoma, and service connection for the cause of the veteran's death is warranted. ORDER Entitlement to service connection for the cause of the veteran's death has been established. The benefit sought on appeal is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 C. P. RUSSELL JACK W. BLASINGAME *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). 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.