Citation Nr: 0206963 Decision Date: 06/27/02 Archive Date: 07/03/02 DOCKET NO. 99-09 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In November 2000 the Board denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated in August 2001, the Court vacated the Board's decision and remanded the case for readjudication in light of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 106-475, 114 Stat. 2096 (Nov. 9, 2000). By a letter dated December 14, 2001, the Board notified the appellant that any additional argument or evidence must be forwarded to the Board within 90 days of the date of this letter. On April 29, 2002, medical records and a statement from the appellant were received at the RO. These records were received at the Board in June 2002. In her statement, the appellant indicated that she wished to enlarge her claim to include entitlement to service connection for the cause of the veteran's death as due to exposure to Agent Orange. Since good cause for the delay in submission of the additional material has not been shown, the additional evidence and argument is hereby referred to the RO for its consideration. See 38 C.F.R. § 20.1304(a) and (b). FINDING OF FACT The preponderance of the medical evidence is against the finding that a disability incurred in or aggravated by active service was the principal or a contributory cause of the veteran's death. CONCLUSION OF LAW The appellant is not entitled to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1310, 1312, 5107 (West 1991 & Supp 2001); 38 C.F.R. § 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty of notice and assistance. During the pendency of this appeal, there was a significant change in the law. Specifically, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5102, 5103, 5103A, 5107 (West Supp. 2001), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law also eliminated the concept of well-groundedness and is applicable to all claims filed on or after the date of enactment or those filed before the date of enactment but not yet final as of that date. VCAA, § 7(a), 114 Stat. at 2099- 2100; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). More recently, new regulations were adopted to implement the VCAA. 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)). The Board has reviewed the facts of this case in light of the VCAA and the implementing regulations. The Board is satisfied that VA has made all reasonable efforts to assist the appellant in the development of her claim and has notified her of the information and evidence necessary to substantiate her claim. With regard to VA's duty to notify, the Board concludes that the discussions in the RO's July 1998 and January 1999 rating decisions; the April 1999 Statement of the Case; the Board's November 2000 decision; and other letters sent to the appellant have informed her adequately of the information and evidence needed to substantiate her claim and the applicable regulations. With regard to VA's duty to assist, the Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. Contrary to the appellant's argument on appeal, the relevant medical opinions currently of record do address the issue of whether the veteran's alleged in-service exposure to asbestos contributed to his death. Therefore, additional medical development is unnecessary. Legal Criteria. The appellant contends, in essence, that the malignant mesothelioma which caused the veteran's death developed from his exposure to asbestos during his World War II service as a United States Marine while he was being transported in Navy ships. Pursuant to 38 U.S.C.A. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Hanna v. Brown, 6 Vet. App. 507, 510 (1994). A veteran's death will be considered service-connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. Service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for disease which is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Where a veteran served 90 days or more during a period of war, or in peacetime after December 1946, and certain specified chronic diseases become manifest to a degree of 10 percent within one year from the date of termination of such service, 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases and VA has not promulgated any regulations regarding asbestos-related diseases. However, VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos in VA ADJUDICATION PROCEDURE MANUAL M21-1 (this was formerly Department of Veteran's Benefits, DVB, Circular 21-88-8, Asbestos-Related Disease (May 11, 1988)). VA must analyze the claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21. An asbestos-related disease can develop from brief exposure to asbestos. Id. Some of the major occupations involving asbestos exposure include work in shipyards. Id. There is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. Id. It is a fact that many U.S. Navy veterans during World War II were exposed to chrysotile products, as well as amosite and crocidolite, since these varieties of African asbestos were used extensively in military ship construction. Id. See also Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must also determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (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 these 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 the latency and exposure information discussed above. M21-1, Part VI, 7.21. In this case, the record shows that the RO complied with these procedures, as is discussed further below. More recently, the Court has held that neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 2001). VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 2001) It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. 38 C.F.R. § 3.102 (2001) In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Factual Background. Service medical records reflect that the veteran was examined for service with the United States Marine Corps in July 1942. The examination was negative for any relevant complaints, findings, or diagnoses. A separation examination dated in September 1945 is also silent for any pertinent findings. The veteran's remaining service medical records, including a November 1950 report of service department examination, do not contain any relevant clinical data. Official service records reflect that the veteran had a special military qualification of general draftsman and that he served in the Central and Western Pacific area from December 1942 to September 1943 and participated in action against the enemy at Okinawa, Ryukyu Islands, from April 1945 to August 1945. By a rating decision dated in February 1946, service connection was established for ruptured ear drum, left. This disability was rated as zero (0) percent disabling. Upon VA examination in October 1946, the veteran reported that he was employed as an apprentice tile setter. Similarly, a February 1947 statement from an individual with whom the veteran worked, reflects that the veteran and this individual had been apprentice tile setters during the previous nine months. This information is also corroborated by a copy of the veteran's dossier which shows that he was employed as a journeyman tile setter in 1945. By a rating dated in December 1946, the veteran's service- connected left ear condition was classified as otitis media, chronic, suppurative, intermittent, left, and this disability was rated as 10 percent disabling from October 1946. By a rating dated in February 1949, the evaluation for the veteran's left ear condition was increased to 20 percent, effective October 1948. However, by a rating dated in August 1950, the rating was reduced to 10 percent from November 1950. By a rating dated in June 1952, service connection was also established for atrophy of the left testicle, rated as zero (0) percent disabling. On an examination in November 1954, the veteran reported that he was employed by the Federal Government to buy jet engines. In December 1954, the RO assigned separate 10 percent ratings for the veteran's left ear otitis media and for his left ear hearing loss. In 1957 the veteran underwent surgical removal of his left testicle, and in 1959 he underwent a left radical mastoidectomy. By a rating dated in October 1960, the veteran was granted a 10 percent rating for surgical absence left testicle, and he was found to be entitled to special monthly compensation on account of anatomical loss of a creative organ. The rating for left ear otitis media, now classified as left mastoidectomy, was reduced to zero (0) percent. In 1963 the veteran underwent more than one surgical procedure on his left ear. The diagnoses included tumor, left external auditory canal; sclerosing mastoiditis; and chronic otitis media with cholesteatoma. By a rating dated in October 1963, the veteran's left ear condition was rated as Meniere's syndrome with tumor left ear and defective hearing, evaluated as 30 percent disabling from March 1963. Service connection was also established for partial paralysis, left facial nerve, evaluated as 10 percent disabling. The combined rating for his service-connected disabilities was increased from 20 to 40 percent from March 1963. In a statement received in March 1975, the veteran presented a detailed account of his medical history. In this statement, the veteran reported that from November 1942 to January 1943 he was aboard the USS HENDERSON while being shipped overseas to the Pacific. He reported that he slept on deck. He also reported that he was aboard a ship in March 1945 during the invasion of Okinawa. On an examination in September 1975, it was noted that the veteran was a map maker in the service. On an examination in July 1988, it was reported that he had been in Naval Intelligence and combat in World War II in the Pacific. When the veteran was hospitalized in June 1988 it was noted that he had a long history of left ear infection, drainage and hearing loss with multiple surgeries on the left ear. He last underwent surgery in January 1988 for reconstruction of the tympanic membrane and ear canal. He was admitted in June 1988 for ossicular reconstruction. In July 1989 he was again hospitalized, at which time he underwent a modified radical mastoidectomy on his left ear. On a report of examination dated in June 1990, it was noted that the veteran reported that he had undergone five surgeries on his left ear. By a rating decision dated in September 1990, the rating for Meniere's syndrome was increased from 30 to 60 percent and the combined rating for the veteran's service-connected disabilities was increased to 70 percent, effective January 1989. In April 1995 the veteran filed an application for increased compensation based upon unemployability. Information of record reflects that the veteran retired from the Department of Defense in 1984 after more than 37 years of Government service. His education included a Masters degree in Business Administration, a Ph.D. in philosophy (metaphysics), and a Doctor of Divinity in Cannon Law. By a rating decision dated in December 1995, it was noted that the veteran had been seen on August 16, 1994, for complaints of worsening dizziness and severe left ear pain. Diagnostic impressions included serous otitis. The RO held that worsening symptoms of dizziness and left ear pain, with hearing loss requiring the use of hearing aids, would prevent gainful employment. The veteran was found to be entitled to a total rating based upon unemployability due to service- connected disabilities from August 16, 1994. In June 1996, the veteran underwent resection of a bladder tumor which had been found on routine cystoscopy. The resection revealed a grade 3 transitional cell carcinoma invasive to the muscularis propria. Biopsies of the prostatic urethra demonstrated invasive transitional cell carcinoma. The veteran then underwent a radical cystectomy, prostatectomy and urethrectomy with ileal loop diversion and bilateral ureteral stent placement. VA outpatient treatment records reflect that, upon follow-up for chronic unilateral (right) pleural effusion in January 1998, the diagnoses included "[p]leural effusion - etiology remains unclear, but tuberculous effusion highly unlikely with current data. Cannot rule out malignant process (transitional cells Ca or mesothelioma) at present, but its stability over time argues against it." VA treatment records also show that, during hospitalization from March 12, 1998, to April 6, 1998, the veteran underwent a thorascopic biopsy and chest tube placement on March 20, 1998. It was noted that "[t]he frozen sections during the thorascopic biopsy showed the lung pleura was riddled with small nodules, the final pathology shows mesothelioma." A June 1, 1998, Discharge Summary reflects that the veteran was 76 years of age with a history of chronic right pleural effusions and mesothelioma. A Certificate of Marriage reflects June 1955 as the date of birth of the appellant and shows that the veteran and the appellant were married in December 1990. The Certificate of Death shows that the veteran died on June [redacted], 1998. The immediate cause of death was listed on the death certificate as cardiopulmonary arrest due to respiratory failure due to complications of malignant mesothelioma. The appellant filed her claim for VA death benefits in June 1998. In connection with her claim for VA death benefits, the appellant has submitted several of her own statements to the effect that the veteran's death was due to exposure to asbestos while working at Navy shipyards as well as while serving aboard ship and being transported to the theater of operations. In her February 1999 VA Form 21-4138, Statement in Support of Claim, the appellant argues that, inasmuch as the veteran spent four years in the Marine Corps and set tile for almost five years, he spent an equal amount of time in both of these activities and, by application of the benefit of the doubt doctrine, service connection for the cause of his death should be granted. Of record is a September 1998 letter from R. B. Goodman, M.D., which consisted of the following statement: [The veteran] was a patient of mind at the Seattle VA Medical Center. His wife has asked that I write to you with my opinion regarding his cause of death. [The veteran] died from a malignant mesothelioma. His tumor was diagnosed by surgical biopsy in March 1998. It is clear in the medical literature that inhalation of asbestos particles is responsible for the majority of cases of malignant mesothelioma. His wife tells me that [the veteran] was exposed to asbestos as part of his duties in the armed services. Further, she tells me that he had no other occupations which exposed him to asbestos. The timing of onset of his mesothelioma is compatible with the expected latency period between exposure to asbestos and development of malignancy (greater than 40 years). Thus, based on the available information, it is my opinion that [the veteran] died of a malignant mesothelioma that developed as a complication of his asbestos exposure during his tour of duty in the armed services. Also of record is a January 1999 medical opinion from L. J. Weaver, M.D., a VA pulmonologist, which consists of the following: The veteran served in the military July 1942 to September 1945 in the Marine Corps as a "rifleman" and was aboard ship in the Pacific April 1945 to August 1945. I have reviewed his service medical records and claims file and no other source of asbestos exposure other than incidental exposure on board ship is identified. On the other hand, he worked as a tile setter after service in 1945, 1947 and according to his own job history from 1945 likely through 1950. Asbestos prior to 1975 was a common ingredient in floor, ceiling, and cement tiles and cutting into these materials to ensure a good fit was a source of substantial asbestos exposure (Harrison's Principles of Internal Medicine; pp. 1057-58, 1991). It is most probable that the cause of his excess substantial asbestos exposure was tile installation and cutting[,] not incidental exposure on board ship in service. It is not probable that military service contributed to his mesothelioma related to excess asbestos exposure. Dr. Goodman's opinion is not supported by the facts of this case regarding [the veteran's] occupational history. Analysis. The veteran's service medical records are negative for any indication of the presence of mesothelioma. In fact, the first clinical evidence of mesothelioma in the claims file is in 1996, approximately 41 years after the veteran's separation from military service. Thus, service connection would not be warranted for the fatal condition either on the basis of direct service incurrence or on the basis of the mesothelioma becoming manifest to the required degree within one year following the veteran's separation from military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board has carefully considered the appellant's argument that the veteran's exposure to asbestos during his World War II military service caused the malignant mesothelioma. She alleges that the veteran was exposed to asbestos while aboard ships being transported to such places as the Ryukyu Island during his World War II service, and that there was no further exposure to asbestos after his discharge from service. As noted above, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, and an asbestos-related disease can develop from brief exposure to asbestos. See M21-1, Part VI, 7.21, supra. Official service records and statements made by the veteran prior to his death clearly reflect that the veteran, a Marine, was transported on Naval ships during his World War II service in the Pacific area. However, there is simply no evidence in the service records or elsewhere that the veteran was exposed to asbestos at any time during his military service. The veteran was not a member of any ship's crew and he was not an insulation or shipyard worker. As noted above, the Court in Dyment v. West, held that neither the MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Thus, even if the Board were to consider the veteran to have "shipboard service" by virtue of his time aboard a Navy ship while being transported from one place to another, this would not establish asbestos exposure. Rather, the record clearly reflects that the veteran was most likely exposed to asbestos as a journeyman tile setter after service. Moreover, a January 1999 medical opinion from Dr. Weaver, a VA pulmonologist who reviewed the veteran's claims file and service medical records, concluded that, "[i]t is most probable that the cause of [the veteran's] excess substantial asbestos exposure was tile installation and cutting[,] not incidental exposure on board ship in service. It is not probable that military service contributed to his mesothelioma related to excess asbestos exposure." The opinion from Dr. Goodman to the effect that the veteran's mesothelioma was due to his asbestos exposure during his military service appears to rely on the appellant's statements concerning the veteran's alleged asbestos exposure in service. As noted above, the Board has determined that the record does not reflect that the veteran was exposed to asbestos during his military service. A medical opinion is only as credible as the history on which it is based. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); see also Elkins v. Brown, 5 Vet. App. 474, 478 (1993), wherein the Court made the following statement: Although [the doctor] examined the appellant on many occasions, there is no indication that he formed his opinion [that appellant's disability was service-connected] on a basis separate from appellant's recitation of his medical and service background. See also Swann v. Brown, 5 Vet. App. 229, 233 (1993) [a diagnosis "can be no better than the facts alleged by the appellant."]. It is significant that Dr. Goodman's medical opinion which has been submitted in support of the appellant's claim does not appear to have been based on a thorough review of the veteran's medical history, but rather, on the uncorroborated postmortem history of alleged in-service asbestos exposure supplied to the physician by the appellant. Accordingly, neither the appellant's lay testimony nor the opinion of Dr. Goodman are of sufficient probative value to outweigh the medical opinion offered by Dr. Weaver who had access to documents setting forth the veteran's service and medical background, as well as his employment history. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Additionally, Dr. Goodman's opinion is based in part upon the appellant's assertion that the veteran had no occupation other than his duties in the armed services which exposed him to asbestos. The record clearly establishes that this is not correct. The veteran did in fact work at an occupation after service which exposed him to substantial asbestos exposure. Thus, the opinion of Dr. Goodman is based upon a history that is contradicted by the established facts. A medical opinion based on a factual predicate that has been rejected by the Board lacks probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also Owens v. Brown, 7 Vet. App. 429 (1995); Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993). Accordingly, the Board assigns little probative value to the opinion of Dr. Goodman. The preponderance of competent and probative evidence of record shows that the veteran's fatal malignant mesothelioma was most likely caused by "excess substantial asbestos exposure" which was sustained during "tile installation and cutting" after the veteran was released from military service. Thus, the fatal malignant mesothelioma which resulted in the veteran's death is not shown to be related to his period of military service. In summary, it is apparent that service connection for the cause of the veteran's death is not warranted either on the basis of direct service incurrence; on the basis of the presumptive provisions of the law; or as due to exposure to asbestos during the veteran's military service. The appellant's representative, in a statement dated in May 2002, asserts that inasmuch as the veteran was aboard ship during service, the Board may conclude that he was then exposed to asbestos predicated on the benefit of the doubt. In his opinion of January 1999, Dr. Weaver indicated that the veteran may have had incidental exposure to asbestos on board ship during his service. However, as the Board noted above, there is simply no evidence in the service records or elsewhere that the veteran was exposed to asbestos at any time during his military service. The veteran was not a member of any ship's crew and he was not an insulation or shipyard worker. The Court in Dyment v. West, held that there is no presumption of exposure to asbestos solely from shipboard service. Thus, even if the Board were to consider the veteran to have "shipboard service" by virtue of his time aboard a Navy ship while being transported from one place to another, this would not establish asbestos exposure. Examination of 38 C.F.R. § 3.102 shows that VA recognizes a difference between the words "probability" and "possibility": By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. In the opinion of the Board, while the record establishes that there is a possibility that the veteran was exposed to asbestos aboard a ship during his service, the record fails to establish that there was a probability of such exposure. To find that the veteran was exposed to asbestos aboard ship during service would require resort to pure speculation; such exposure is at best a remote possibility. The remaining question for consideration is whether the service-connected conditions contributed to the veteran's death. In this regard, the record reflects that the veteran had established service connection for a number of conditions including Meniere's syndrome, post-operative tumor left ear with dizziness, tinnitus, and hearing loss, rated as 60 percent disabling; surgical absence of the left testicle, rated as 10 percent disabling; partial paralysis of the left facial nerve, rated as 10 percent disabling; and left mastoidectomy, otitis media, removal cholesteatoma, rated as zero (0) percent disabling. The combined schedular rating for the service-connected disabilities was 70 percent. A total rating based on individual unemployability due to service-connected disabilities had been in effect since August 1994. He was also entitled to special monthly compensation on account of anatomical loss of a creative organ. Although some of the disabilities involved vital organs, none of those disabilities were rated 100 percent disabling. Furthermore, it has not been shown that any of the service-connected disabilities were of such nature and severity so as to result in debilitation or otherwise hasten the veteran's death. Because of the overwhelming nature of the fatal mesothelioma, the veteran's death would have occurred when it did regardless of any co-existing condition. Accordingly, the Board is unable to conclude that the veteran's service-connected conditions contributed to his death or had a material influence in accelerating his death. The Board, after careful review of the entire record in this case, concludes that the evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. Thus, there is no evidence of mesothelioma in service or for many years thereafter, and the preponderance of the competent medical evidence attributes the post-service mesothelioma to post-service asbestos exposure. Although the veteran had several disabilities for which service connection had been established, and which were considered to be so severe as to preclude substantially gainful employment, the mesothelioma was so overwhelming that the service-connected disabilities had no material influence in causing or accelerating his death. Based upon such evidence, the Board concludes that the claim of entitlement to service connection for the cause of the veteran's death must be denied. The Board notes that the RO in a July 1998 rating decision also considered whether the appellant was entitled to DIC benefits under 38 U.S.C.A. § 1318. That statute authorizes payment of death benefits in cases where the veteran "was in receipt of or entitled to receive" compensation for a service-connected disability rated totally disabling for 10 years immediately preceding death or a period of five years from the date of discharge. By a letter dated in July 1998, the RO notified the appellant of the criteria for DIC benefits under 38 U.S.C.A. § 1318 and informed her that her claim for such benefits was not approved because the veteran did not meet any of these conditions. The appellant has not voiced any disagreement with this decision or submitted any argument to this effect. See Cole v. West, 13 Vet. App. 268 (1999) (holding that, as to DIC benefits under section 1318, a claimant must set forth how, based on the evidence in the veteran's claims file, or under VA's control, at the time of the veteran's death and the law then applicable, the veteran would have been entitled to a total disability rating for the 10 years immediately preceding his death). Inasmuch as the appellant did not disagree with the denial of DIC benefits under section 1318, the Board has no jurisdiction as to this matter. ORDER Entitlement to service connection for the cause of the veteran's death is denied. Gary L. Gick 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.