Citation Nr: 0203913 Decision Date: 04/29/02 Archive Date: 05/07/02 DOCKET NO. 99-00 345A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death, including as a result of asbestos exposure. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The veteran served on active duty from August 1959 to December 1960. He died in December 1997. The appellant is the veteran's surviving spouse. This case was originally before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2000, the Board remanded the case to the RO for additional development. The case has been returned to the Board for appellate consideration. The Board notes that although the issue of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 was not addressed by the Board in the July 2000 decision or certified for appeal by the RO, that the matter was developed in the November 1998 statement of the case and that the appellant submitted her substantive appeal as to all issues in January 1999. Therefore, the Board has listed this matter on the title page of this decision. However, the Board has imposed a temporary stay on the adjudication of DIC claims under the provisions of 38 U.S.C.A. § 1318 in accordance with the directions of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) in its decision in National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, Nos. 00-7095, -7096, -7098 (Fed. Cir. Aug. 16, 2001). In that decision the Federal Circuit directed the Department to conduct expedited rulemaking which will either explain why certain regulations-38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106-are inconsistent on the "hypothetical entitlement" issue or revise the regulations so that they are consistent. The temporary stay on the adjudication of certain 38 U.S.C. § 1318 claims, including the claim in this case, will remain in effect pending the completion of the directed action. The Board also notes that correspondence from the appellant received in October 1998 and correspondence to the President dated in September 1999 may be construed as raising a claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 as a result of an additional disability due to VA medical treatment. Although the appellant apparently did not respond to the RO's request in the November 1998 statement of the case that she clarify whether or not she was claiming entitlement to compensation under 38 U.S.C.A. § 1151, the Board finds the issue was revived by her September 1999 correspondence. Therefore, this matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The appellant has been adequately notified of the evidence necessary to substantiate her claim and of the action to be taken by VA. 2. All relevant evidence necessary for an equitable disposition has been obtained and the available medical evidence is sufficient for an adequate determination of the matter on appeal. 3. The veteran died in December 1997 at the age of 57. 4. Pulmonary edema was certified as the immediate cause of death due to carcinoma of the lung with metastasis on the veteran's December 1997 death certificate. 5. Persuasive medical evidence demonstrates the veteran's cause of death was primarily due to pulmonary edema and congestion, carcinoma of the left lung (left main bronchus) with metastasis to the left pleura, mediastinal lymph nodes, and left diaphragm dome, and sigmoid diverticulitis with recent perforation and presence of liquid feces in the low abdominal peritoneum. 6. At the time of death, the veteran was service-connected for bronchial asthma, rated 30 percent disabling. 7. The veteran's carcinoma was not manifested during active service, or within the one-year presumptive period following service. 8. The veteran's service-connected disability did not substantially or materially contribute to the cause of his death. CONCLUSIONS OF LAW 1. The primary cause of the veteran's death was not the result of disease or injury incurred in or aggravated by active military service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001). 2. The veteran's service-connected disability was not related etiologically to the cause of death, nor did it contribute substantially or materially to cause death. 38 U.S.C.A. §§ 1131, 1310, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. VA regulations have also been revised as a result of these changes. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The VCAA provides that upon receipt of a complete or substantially complete application VA is required to notify the claimant and the claimant's representative, if any, of any information necessary to substantiate the claim and to indicate which information should be provided by the claimant and which information VA will attempt to obtain. See 38 C.F.R § 3.159(b)(1). In this case, the Board finds that the statement of the case, the supplemental statements of the case, and the July 2000 Board decision adequately notified the appellant of the evidence necessary to substantiate the claim and of the action to be taken by VA. The revised duty to assist requires VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim, make reasonable efforts to obtain relevant records adequately identified and authorized by the claimant, notify the claimant of the efforts taken to obtain those records, describe further action to be taken by VA, and make continued efforts to obtain records from a federal government department or agency unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R § 3.159(c). The Board notes that the veteran's service medical records were received in October 1967 and that all identified and authorized medical records pertinent to the matter on appeal have been obtained. Although the appellant claimed the veteran had been treated at a service department medical facility after his discharge from service, a November 2000 service department report noted a search for inpatient or outpatient records for the period requested had been unsuccessful. Therefore, the Board finds additional efforts to obtain those records would be futile. In claims for disability compensation VA is required to provide medical examinations or obtain medical opinions when necessary for an adequate decision. In this case, the Board notes the veteran's claims file was reviewed by a VA examiner in April 1999. The Board finds that evidence sufficient for an adequate determination of the matter on appeal has been obtained. With asbestos-related claims, it must be determined whether the claim-development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With such claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind pertinent latency and exposure information. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. Therefore, the Board finds that VA has met the notice and duty to assist provisions contained in the new law. In light of the notice and development action provided in this case, the Board also finds it would not be prejudicial to the appellant to issue a decision at this time. But see Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to notify and to assist the appellant. Further development and further expending of VA's resources is not warranted. Background Service medical records show the veteran was hospitalized in November 1960 and treated for perennial asthma, allergens unknown. A December 1960 medical board report recommended discharge from service. Service records show the veteran had service aboard ship as a fireman and boilerman. The veteran was afforded a VA examination in May 1963. At that time, reported attacks of asthma from several times a week to once a week. It was noted he smoked 3/4 a pack of cigarettes per day and that he had previously smoked more than 2 packs a day. X-ray examination of the chest was negative. The diagnosis was bronchial asthma. A November 1963 rating decision granted entitlement to service connection for bronchial asthma. A 30 percent disability rating was assigned effective from February 27, 1963. VA medical records show the veteran was treated for his service-connected asthma disability in the mid-1990's. An April 1996 x-ray examination revealed no pleural effusions or evidence of pneumonitis but demonstrated bilateral non- specific interstitial lung disease without significant change since a May 1995 study and fibrocalcific scarring to the right apex without significant change as compared to studies dated from September 1993. VA outpatient treatment reports dated in May 1996 noted the veteran complained of fatigue and shortness of breath that had persisted since a bout of pneumonia a few weeks earlier. It was noted the veteran had a history of service-connected bronchial asthma and a history of asbestos exposure while in service. Examination revealed good air exchange to the veteran's lungs with no evidence of wheezing. Pulmonary function testing revealed mild restrictive dysfunction. A follow-up examination noted diagnoses including bronchial asthma, with mild bilateral wheezing but no respiratory compromise. Additional VA outpatient treatment records include a November 1996 report that noted a diagnosis of mild restrictive lung disease. It was further indicated the veteran had a history of smoking and a history of exposure to asbestos during service. An April 1997 report noted the veteran complained of lung burning and congestion, fatigue, and pain across the back of 3 weeks duration. It was also noted the veteran reported a history of asbestos poisoning. X-ray examination in April 1997 revealed miliary pattern in the lower lateral lung fields, scarring of the right apical pleura, and chronic lung changes but no evidence of definite recent infiltrates. A July 1997 study revealed bilateral non-specific interstitial pulmonary changes but no evidence of acute focal infiltrate. An August 1997 report noted no significant interval change since the July 1997 study. VA outpatient treatment records dated in September 1997 noted the examiner's impression of asthma exacerbation and possible pneumonia. X-ray examination revealed an acute interstitial infiltrate to the right lung and a suggestion of mediastinal and aorticopulmonary window adenopathy consistent with tuberculosis, histoplasmosis, coccidioidomycosis. It was noted that lymphangitic spread of tumor could not be excluded. VA hospital records dated in October 1997 included discharge diagnoses of left main stem endobronchial mass/probable primary bronchogenic carcinoma, large exudates, hemorrhagic pleural effusion, and severe bilateral interstitial lung disease, possibly secondary to asbestos exposure. X-ray examination in October 1997 revealed diffuse, severe, interstitial lung disease, left greater than right, some chronic pleural thickening on the left, multiple small apical bullae, and a left hilar and subcarinal mass with narrowing of the left main bronchus. It was noted a small pleural effusion to the left hemothorax could not be entirely excluded. VA treatment records dated in November 1997 noted diagnoses of terminal metastatic lung cancer. A November 1997 pathology report noted bronchial biopsy revealed moderately to poorly differentiated adenocarcinoma. In November 1997, the veteran submitted an application for VA benefits including entitlement to an increased rating for his service-connected bronchial asthma and entitlement to service connection for asbestosis and lung cancer. In a November 1997 statement Dr. P. B., a physician associated with the Fresno, California, VA Medical Center, noted the veteran had lung cancer as well as asbestos related lung disease. A November 1997 note by Dr. L. N., a VA primary care physician, stated the veteran had poorly differentiated adenocarcinoma of the lungs and that pulmonary function test and chest x-ray findings were consistent with fibrosis related asbestos exposure. It was noted that exposure to asbestos put the veteran at risk for lung cancer. VA hospital records include a December 1997 final hospital summary indicating Dr. D.T. was one of the veteran's treating physicians at the time of his death. The report noted final diagnoses of hypoxia, lung cancer with bony metastases, pleural effusion, recurrent pneumonia, pulmonary fibrosis, hypertension, asthma, alcohol abuse, dysthymia, seborrheic dermatitis, Klinefelter, osteoporosis, nausea and vomiting secondary to paralytic ileus, and malnutrition. It was further indicated the family had requested an autopsy of the veteran's lungs since he had a history of asbestos exposure. A December 1997 death certificate listed pulmonary edema as the veteran's immediate cause of death as due to carcinoma of the lungs with metastasis. The interval between onset and death was reported as days for pulmonary edema and as months for carcinoma of the lung with metastasis. It was noted that there were no other significant disorders contributing to death and that an autopsy was to be performed for use in determining cause of death. The report also noted the veteran had been employed as a truck driver in the cement industry for 25 years. He was 57 years of age at the time of his death. The certifying physician was Dr. D.T. In a December 1997 autopsy protocol report Dr. J.R.S. noted an autopsy revealed primary diagnoses of pulmonary edema and congestion, carcinoma of the left lung (left main bronchus) with metastasis to the left pleura, mediastinal lymph nodes, and left diaphragm dome, and sigmoid diverticulitis with recent perforation and presence of liquid feces in the low abdominal peritoneum. Secondary diagnoses were provided including moderate anthracosis, moderate dilatation of the small intestine, generalized arteriosclerosis with multiple aortic calcified plaques, bilateral testicular atrophy and hyalinization suggestive of Klinefelter's syndrome, moderate cerebral edema and congestion, mild hydrocephalus, and focal peritonitis. The examiner stated the veteran's cause of death was respiratory failure secondary to pulmonary edema, congestion, and patchy pneumonitis in a moderately emphysematous lung. It was noted that no asbestos bodies or other pathological abnormalities suggestive of asbestosis were present in the veteran's respiratory system. The underlying disease process was squamous cell carcinoma of the left main bronchus with partial obstruction and metastasis to parabronchial lymph nodes, left pleural surfaces, and bone. Contributory factors toward demise included perforated large intestine with free feces in peritoneum and focal peritonitis. In June 1998, the RO received an "Asbestos Questionnaire" which noted the veteran's active service duties included work in a ship boiler room and that for 8 months he had worked in dry dock removing asbestos insulation. It was noted that prior to service the veteran worked on a chicken farm handling eggs and after service he worked for a short period on assembly line but that his primary occupation had been as a truck driver. It was also noted that the veteran had smoked one or 2 packs of cigarettes per day for 40 years. In July 1998, the RO, inter alia, denied entitlement to an increased rating for bronchial asthma, for accrued benefits purposes, and denied entitlement to service connection for the veteran's cause of death, including as a result of asbestos exposure. In her notice of disagreement the appellant claimed the veteran's asbestosis was a contributing factor in the cause of his death. She reiterated her claim in her substantive appeal and submitted additional evidence in support of the claim. In a September 1998 statement in support of her claim the appellant noted the veteran had been treated at the Fresno VA Medical Center for his respiratory disorder and that in early 1997 his physicians told them his respiratory illness was due to asbestos exposure and had progressed into cancer. She stated they had been informed at that time that that kind of cancer was incurable and untreatable. She noted the veteran had worked as a truck driver throughout his life hauling produce and had never hauled hazardous material. In a September 1998 "Amendment of Medical and Health Data - Death" report Dr. D.T. certified that the immediate causes of the veteran's death were pulmonary edema, carcinoma of the lungs with metastasis, and asbestosis. The interval between onset and death was reported as days for pulmonary edema, as months for carcinoma of the lung with metastasis, and as years for asbestosis. The appellant reiterated her claim at a personal hearing in March 1999. She testified that Dr. L.N. had been the veteran's primary care physician and that Dr. P.B. was a cancer specialist at the Fresno VA Medical Center. She stated that she did not know if Drs. D.T., L.N., or P.B. had reviewed the veteran's autopsy report but that she would ask if they would provide additional comments. In an April 1999 opinion Dr. R.F.R., a VA Regional Medical Officer and Diplomate of the American Board of Surgery (General Surgery), stated, in essence, that the opinion of Dr. J.R.S. should be considered persuasive in light of the absence of radiology reports confirming the presence of asbestosis. It was noted that Dr. J.R.S. was best qualified to make a definitive final diagnosis in this case. The appellant reiterated her claim in correspondence dated in July 1999 to the Secretary of VA and to her Congressional representative and in correspondence dated in September 1999 to the President. In January 2000, the RO received a copy of additional correspondence in which the appellant reiterated her claim to her Congressional representative. In a July 2000 decision, the Board found the appellant's claim was well-grounded and remanded the case to the RO for additional development. In a July 2000 statement the veteran's brother, G.W.A., noted he, the veteran, and their brother C.W.A. had been exposed to asbestos while working aboard ship during a ship overhaul. It was his opinion that the veteran's early death was caused by his extreme exposure. A business card was included which shows G.W.A. was employed as an engineering inspector with the Public Works Department of the City of Fresno, California. In a separate statement the veteran's brother, C.W.A., noted the veteran and G.W.A. had worked with him in the boiler room of their ship and that they had been exposed to asbestos in performing numerous tasks. In October 2000 the RO received records from the service department indicating the veteran had been hospitalized from November 14, 1960, to December 22, 1960, and treated for perennial asthma. Analysis Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (2001). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. See 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(a) (2001). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. See 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability causally shared in producing death, rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. See 38 C.F.R. § 3.312(c)(3). In addition, where a veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and malignant tumors, become manifest to a compensable degree within one year after the veteran's military service ended, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309 (2001). In McGinty v. Brown, 4 Vet. App. 428 (1993), the Court, noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in Department of Veterans Benefits Circular 21-88-8 (DVB Circular), dated May 11, 1988. The DVB Circular was subsequently rescinded but its basic guidelines are now found in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, that an asbestos-related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b), p. 7- IV- 3 (January 31, 1997). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (Court held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The Federal Circuit Court has held that a claimant seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Federal Circuit Court has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2001). In this case, the Board finds persuasive medical evidence demonstrates the veteran's cause of death was not incurred in or aggravated by active service and that a service-connected disability did not substantially or materially contribute to the cause of his death. There is no probative evidence the veteran's carcinoma was manifested during active service or within the one-year presumptive period following service and no probative evidence that his service-connected bronchial asthma substantially or materially contributed to the cause of his death. Although the veteran's service-connected disability affected his lungs, a vital organ, there is no probative evidence indicating the debilitating effects of this disability rendered him less capable of resisting the effects of the disorders which caused his death. The Board notes credible evidence indicates the veteran was exposed to asbestos during active service and that the RO, in essence, conceded this fact in the August 2001 supplemental statement of the case. However, as this case turns on a medical question, only independent medical evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). While the evidence in this case includes competent medical opinions indicating the veteran's cause of death was related to asbestosis incurred as a result of exposure during active service, the December 1997 autopsy found no evidence of asbestosis. The Board notes that the examining pathologist's opinion was based upon a more thorough examination of the veteran and that his opinion is unequivocal that there was no evidence of asbestos bodies or other pathological abnormalities suggestive of asbestosis present in the veteran's respiratory system. Therefore, the Board finds the December 1997 autopsy report is persuasive. See Madden, 125 F.3d 1477. In addition, based upon a review of the evidence and the conflicting medical opinions of record, Dr. R.F.R. stated that the pathologist, Dr. J.R.S., was best qualified to make a definitive final diagnosis in this case. The Board also notes that the evidence indicative of an asbestos related disease or carcinoma was provided prior to the veteran's death and the subsequent autopsy. While Dr. D.T. signed an amendment to the veteran's death certificate in September 1998 adding asbestosis as a cause of the veteran's death, there is no evidence the physician considered the autopsy findings prior to this action or that he believed them to be erroneous. Therefore, the Board finds the opinion of Dr. D.T. warrants a lesser degree of probative weight. The Board notes the appellant was, in essence, notified of the evidentiary deficiency of the amended death certificate action by Dr. D.T. at her March 1999 personal hearing but that she submitted no additional medical evidence as to the matter. Although the M21-1 guidelines note that persons with asbestos exposure have an increased incidence of bronchial cancer in current cigarette smokers, the persuasive medical evidence in this case found no evidence suggestive of asbestosis or asbestos exposure residuals. Therefore, the Board finds entitlement to service connection for the cause of the veteran's death is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the Board finds the preponderance of the evidence is against the appellant's claim. ORDER Service connection for the cause of the veteran's death is denied. A. BRYANT Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.