Citation Nr: 0409566 Decision Date: 04/13/04 Archive Date: 04/21/04 DOCKET NO. 00-08 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for cause of the veteran's death, claimed as due to asbestos exposure. 2. Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and the appellant's daughter ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service in the Navy from May 1945 to October 1947, and in the Air Force from January 1951 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2000 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied service connection for the cause of the veteran's death and entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. In the appellant's notice of disagreement (NOD) she specifically asserted that the cause of the veteran's fatal squamous cell carcinoma was inservice exposure to asbestos. After the appeal was perfected by filing VA Form 9 in April 2000, the appellant and her daughter testified at a travel board hearing before the undersigned Veterans Law Judge in September 2001. At that hearing the appellant rendered testimony as to the veteran's inservice asbestos exposure. However, she raised for the first time the allegation that the veteran's fatal squamous cell carcinoma may have been due to inservice radiation exposure during his first period of military service while a deep-sea diver in the coastal waters of Japan. She also testified that he had been in Nagasaki (pages 6 and 8 of the transcript of that hearing) and also that he had been exposed to radiation during his second period of military service while repairing X-ray machines (page 8 of the transcript). In October 2002 the Board undertook additional development of the case to obtain private post-service treatment records and the veteran's service personnel records. Then, in July 2003, the Board remanded this claim to the RO for readjudication in light of the precedent decision in Disabled American Veterans, et al. v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). The RO has not addressed the claim for service connection for the cause of the veteran's death based on the allegation that his fatal squamous cell carcinoma was due to inservice exposure to ionizing radiation, under the regulatory guidelines for claims based on alleged inservice radiation exposure. Such includes referral to the Under Secretary for benefits for consideration under 38 C.F.R. § 3.311. In view of action that needs be taken prior to appellate adjudication of such issue, it will not be addressed by the Board at this time The Board will decide the claim for DIC under 38 U.S.C.A. § 1318 and will address on the merits the claim for service connection for the cause of the veteran's death but only that aspect of this claim in which it is alleged that the veteran's fatal squamous cell carcinoma was due to inservice asbestos exposure. FINDINGS OF FACT 1. At the time of death, service connection was only in effect for psychophysiologic reaction involving the cardiovascular system with anxiety disorder, rated 10 percent disabling, as well as for intercostal neuritis and postoperative residuals of a right ankle fracture, each assigned a noncompensable rating, since August 1, 1969. 2. The veteran's fatal pulmonary carcinoma did not initially manifest until decades after his service in the military had ended and is unrelated to his service-connected disorders which, also, did not contribute substantially and materially to his death, or hasten it, or otherwise aid or lend assistance to it. 3. The record on appeal does not contain radiographic evidence of parenchymal lung disease or a diagnosis of asbestosis. 4. The squamous cell carcinoma of the right lung that caused the veteran's death is a type of lung cancer that begins only in the bronchi. 5. The record on appeal does not contain a credible medical opinion linking the squamous cell carcinoma of the lung that caused the veteran's death to his military service. 6. It has not been shown that at the time of his December 1999 death, the veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling either from the date of the veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or for a period of 10 or more years immediately preceding death. CONCLUSIONS OF LAW 1. The veteran's death was not proximately due to or the result of a condition incurred or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2003). 2. The criteria for entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. §§ 1318, 5107 (West 2002); 38 C.F.R. § 3.22 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DIC Under 38 U.S.C.A. § 1318 It should be pointed out that a final regulation pertaining to DIC benefits for survivors of certain veterans rated totally disabled at time of death was promulgated, effective January 21, 2000. See 38 C.F.R. § 3.22; 65 Fed. Reg. 3388-3392 (2000). That final regulation established an interpretive rule reflecting VA's conclusion that 38 U.S.C. § 1318(b) authorizes payment of DIC only in cases where the veteran had, during his or her lifetime, established a right to receive total service-connected disability compensation from VA for the period required by that statute or would have established such a right if not for clear and unmistakable error by VA. In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II), regarding a challenge to the validity of 38 C.F.R. § 3.22 as amended January 21, 2000, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held, in part, that 38 C.F.R. § 3.22 as amended was not invalid insofar as it precluded "hypothetical entitlement" as an additional basis for establishing eligibility under 38 U.S.C.A. § 1318. In pertinent part, under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22(a) DIC benefits shall be paid to the surviving spouse or children in the same manner as if the veteran's death is service connected when the following conditions are met: (1) The veteran's death was not caused by his or her own willful misconduct; and (2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for a service connected disability that was: (i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or (ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death. (b) For purposes of this section, "entitled to receive" means that at the time of death, the veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because:... (3) The veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date. At the time of the veteran's death in December 1999, service connection was only in effect for a psychophysiologic reaction involving the cardiovascular system with anxiety disorder, rated 10 percent disabling, as well as for intercostal neuritis and postoperative residuals of a right ankle fracture, each assigned a noncompensable rating. These evaluations had been in effect since August 1, 1969. No collateral attack on a VA decision concerning the issue of service connection, disability evaluation, or effective date has been presented, nor have any of the several provisions of 38 C.F.R. § 3.22(b) been satisfied as to meet the "entitled to receive" requisite of 38 C.F.R. § 3.22(a)(2). Thus, since it has not been shown that the veteran was in receipt of, or would have been entitled to receive, compensation at the time of death for a service connected disablement that was continuously rated totally disabling by a schedular or unemployability rating either from the date of the veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or for a period of 10 or more years immediately preceding death, the appellant's claim for DIC under 38 U.S.C.A. § 1318 is without legal merit, and, therefore is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) became effective November 9, 2000, and implementing regulations were created and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003), which essentially eliminate the requirement of submitting a well-grounded claim and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). See also Valiao v. Principi, 17 Vet. App. 229, 332 (2003) (implicitly holding that RO decisions and statements of the case may satisfy this requirement). "[B]ecause the law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not applicable." Mason v. Principi, 16 Vet. App. 129, 132 (2002). Also see Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (holding that VCAA did not affect a federal statute that prohibits payment of interest on past due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for Cause of the Veteran's Death With respect to the VCAA, 38 C.F.R. § 3.159(b)(1) (2003) was recently invalidated by the United States Court of Appeals for the Federal Circuit in Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. September 2003) (PVA). The offending regulatory language suggested that an appellant must respond to a VCAA notice within 30 days and was misleading and detrimental to claimants whose claims were prematurely denied short of the statutory one-year period provided in 38 U.S.C.A. § 5301(a). Thus, that regulatory provision was invalid because it was inconsistent with the statute. The PVA decision created some confusion about whether VA could actually decide all claims prior to the expiration of the one-year statutory period. See PVA; see also 38 U.S.C.A. § 5103(b)(1)(2002). This is significant because, previous to this, VA had issued implementing regulations that allowed VA to decide a claim 30 days after sending a VCAA notification letter, see 38 C.F.R. § 3.159(b)(1). In response, on December 16, 2003, the President signed H.R. 2297, the Veterans Benefits Act of 2003 (the Act). Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003). Section 701 of the Act contains amendments to 38 U.S.C.A. §§ 5102 and 5103, the provisions of law that deal with VA's duties to notify and assist claimants. See VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. In particular, the Act clarifies that VA may make a decision on a claim before the expiration of the one-year VCAA notice period. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(b)(3)). The effective date of that provision is November 9, 2000, the date of enactment of the VCAA. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(c)). The new law does not require VA to send a new notice to claimants. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(e)). Because Congress made the new amendments effective retroactive to the date of the VCAA, they effectively overturn, or invalidate, the Federal Circuit's holding in PVA and, thus, preclude any possible due process violations, even if the veteran's appeal was ongoing during this change in the law. Cf. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); Bernard v. Brown, 4 Vet. App. 384 (1993). The appellant was notified of the VCAA regulations in the supplemental statement of the case (SSOC) of August 2003. Prior to that the appellant was notified by letter in January 2003 that the Board was undertaking additional development of the evidence. She was requested to provide information as to all post-service treatment for respiratory disability and to execute the release forms to obtain that information, and include the names, addresses, and approximate dates of treatment. In February 2003 she provided the complete clinical records of the veteran's November and December 1999 terminal hospitalization at the St. Joseph Hospital and also stated that the other facilities which her husband had attended for any medical treatment prior to his death were all closed. She had been told that there were no records at Camp Pendleton Hospital in California. Also, at the September 2001 travel board hearing she reiterated this and reported that a private physician who had treated the veteran through CHAMPUS had been caught defrauding the government and that his office was closed. So, those records are not available (page 10 of the transcript). Earlier, in August 2000, the RO provided that appellant with copies of the veteran's service medical records (SMRs) and copies of VA examinations conducted in 1969, as she requested. The veteran's service personnel records are also now on file, as are SMRs of his first period of military service. Moreover, the appellant and her daughter testified at the September 2001 travel board hearing. And, in April 2003 the appellant stated that she had no further evidence or argument to present. Accordingly, no further development is required to comply with the VCAA or the implementing regulations. And the appellant is not prejudiced by the Board deciding the appeal without first remanding the case to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Recently, in Pelegrini v. Principi, 17 Vet. App. 412, 421 -22 (2004) the United States Court of Appeals for Veterans Claims (Court) held, among other things, that VCAA notice must be provided to a claimant before an initial unfavorable decision by the RO on the claim. Id. at 421 -22. The Court also reiterated the required content of such notice, specifying that, in addition to the Quartuccio requirements, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." Id. at 421 - 22 (quoting 38 C.F.R. § 3.159(b)(1) (2003)). Here, however, the rating action appealed was in February 2000 prior to the enactment in November 2000 of the VCAA and, thus, it was impossible to provide notice of the VCAA prior to the enactment thereof. Also, in a recent precedent opinion of the VA General Counsel it was held that the language in Pelegrini stating that VA must request all relevant evidence in the claimant's possession was dictum and, thus, not binding. See VAOGC 1-2004 (the Court's statements in Pelegrini that sections 5103(a) and 3.159(b)(1) require VA to include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and is not binding on VA). Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2003). A service-connected disability is deemed to have been the principal cause of death when it, alone or jointly with another disorder, was the underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). When finding that a service-connected disability was a contributory cause of death, it must be shown that the disability contributed substantially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). For service connection to be granted for any disability, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre- existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Furthermore, with chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.; See, too, Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection is also possible for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as malignant tumors, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). As to asbestos-related diseases, the Board notes that there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21- 1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1). (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi (see M21-1, Part VI, par. 7.21(a)(3)); the risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure (Id.); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for entitlement to service connection for the cause of the veteran's death due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to the veteran's death was caused by events in service or an injury or disease incurred therein. Id; Also see Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. Next, the Board notes that it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board is mindful of the prohibition against making its own independent medical determinations, and that there must be plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be based on the quality of the evidence and not necessarily on its quantity or source. With regard to medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, a bare conclusion, even one reached by a health care profession al, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Of course, it goes without saying that every medical opinion must be within the scope of expertise of the medical professional who proffered it. Layno v. Brown, 6 Vet. App. 465 (1994); FED. R. EVID. 601. And a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. With the above criteria in mind, the Board notes that the veteran's death certificate reflects that he died in December 1999 of respiratory failure due to squamous cell carcinoma of the lung of six months duration. Moreover, the M21-1 list lung cancer as one of the asbestos related diseases. See M21-1, Part VI, par. 7.21(a)(1) & (2). Next, a review of the veteran service personnel records shows that during his first period of military service, dated from May 1945 to October 1947 (immediately after World War II), he worked at a facility that the M21-1 lists as having a higher incident of asbestos exposure - a Naval Repair Base (service personnel records show he was stationed at this base from November 1945 to May 1946). See Standard Statement of Service, dated in October 1947; Transcript of Navel Service, dated in October 1951; Also see M21- 1, Part VI, par. 7.21(b)(1). His service personnel records also show he served aboard the U.S.S. Bolster from June 1946 to June 1947 and aboard the U.S.S. Sperry from August 1947 to October 1947. Moreover, service medical records compiled during his second period of military service show complaints and/or treatment for chest pain. See service medical records, dated in September 1952, March 1959, January 1960, April 1960, and March 1969. As to a relationship between the squamous cell carcinoma of the lung that caused the veteran's death and his military service, the Board notes that the appellant testified that the veteran's in- service jobs caused him to be exposed to asbestos which later caused the lung cancer that led to his death. In support of this allegation, the appellant submitted a February 2000 statement from Dr. Kavita Desai in which he opined that "possible asbestos exposure during his service in the Navy may have contributed to his developing lung cancer and to his demise." Furthermore, the Board notes that the M21-1 supports the appellant's claim by pointing out the fact that the veteran's first being diagnosed with lung cancer 30 years after his separation from military service is not a bar to benefits because the latent period for asbestosis can be 45 or more years and noting that as little as one or two months working in a shipyard while in military service could have exposed the veteran to enough asbestos to cause problem 30 years later. See M21-1, Part VI, par. 7.21 (b)(2). On the other hand, a review of the veteran's service personnel records show that, prior to his first period of military service, he worked as a welder's helper/steam fitter in a Portland, Oregon shipyard - another job that the M21-1 reports as having a higher incident of asbestos exposure. See U.S. Navy Enlistment Personnel Qualification Record, dated in May 1945; Notice of Separation from U.S. Naval Service, dated in October 1947; and Application for Certificate in Lieu of Lost or Destroyed Discharge Certificate, dated in January 1951; Also see M21-1, Part VI, par. 7.21(b)(1). Moreover, while service medical records during his second period of military service show complaints, diagnoses, and/or treatment for chest pain, no adverse heart or lung pathology was diagnosed. See service medical records, dated in September 1952, March 1959, January 1960, April 1960, and March 1969. In fact, it was opined on at least one occasion that his problem was psychiatric in origin. Id. Furthermore, in-service chest x-rays were normal. See chest x-rays, dated in May 1945, October 1945, January 1960, December 1960, and April 1968. As to the veteran's post-service medical history, while the claim's file contains post-service medical records dating back to March 1948, they are negative for lung cancer until June 1999 - the veteran's December 1999 Certificate of Death noted squamous cell carcinoma of the lung of six months duration. Also see VA treatment records, dated in March 1948; VA examination reports, dated in December 1969; and treatment records from Saint Joseph's Hospital, dated from November 1999 to December 1999. Interestingly, when examined by VA in December 1969 due to complaints of chest pain, the cardiovascular examiner opined that there was no pulmonary or heart disease and diagnosed intercostals neurosis. As to his in-service and post-service employment history, the veteran, during his second period of military service in the Air Force repaired x-ray machines and other hospital machines and appliances. Following military service, he worked repairing machinery for a dental company. See VA examination report, dated in December 1969. Neither of these jobs is listed by the M21-1 as having a higher incident of asbestos exposure. See M21-1, Part VI, par. 7.21(b)(1). Neither has the appellant produced any medical evidence showing that this type of job had a higher incident of asbestos exposure. Moreover, while the M21-1 provides that a clinical diagnosis of asbestosis requires, not only a history of exposure but radiographic evidence of parenchymal lung disease, no radiographic evidence of parenchymal lung disease appears in the claim's file. See in-service chest x-rays, dated in May 1945, October 1945, January 1960, December 1960, and April 1968; chest x-rays from Saint Joseph's Hospital, dated in November 1999 and December 1999; chest computerized tomography (CT) from Saint Joseph's Hospital, dated in November 1999; and bronchoscopy from Saint Joseph's Hospital, dated in November 1999. See M21-1, Part VI, par. 7.21(c). Similarly, while the M21-1 provides that lung cancer associated with asbestos exposure originates in the lung parenchyma, not the bronchi, the terminal hospitalization records from Saint Joseph's Hospital show a diagnosis of a type of lung cancer that begins only in the bronchi - squamous cell carcinoma. See Dorland's Illustrated Medical Dictionary 1094, p. 267 (28th ed. 1994) (squamous cell carcinoma of the lung is ". . . one of the most common types of bronchogenic carcinoma, generally forming polypoid or sessile masses that obstruct the airways of the bronchi . . ."); Also see M21-1, Part VI, par. 7.21(a)(3); treatment records from Saint Joseph's Hospital, dated in November 1999 and December 1999. Conclusion With the above facts in mind, the Board concedes that the veteran worked for a year during his first period of military service at a facility that the M21-1 reports has a higher incident of asbestos exposure (a Naval Repair Base from November 1945 to May 1946 as a salvage diver). Further it is conceded that as little as one or two months working in a shipyard while in military service could have exposed the veteran to enough asbestos to cause a problem 30 years later, lung cancer is one type of disease that could be caused by asbestos exposure, and his first being diagnosed with lung cancer 30 years after his separation from military service is not a bar to benefits because the latent period for disease associated with asbestos exposure can be 45 or more years. See M21-1, Part VI, par. 7.21(a)(1) & (2), (b)(1) & (2). Nonetheless, as to service connection for the cause of the veteran's death due to asbestosis, the Board concludes that the record on appeal does not contain radiographic evidence of parenchymal lung disease or a diagnosis of asbestosis. See M21-1, Part VI, par. 7.21(c). Therefore, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.312 (2003). As to entitlement to service connection for the cause of the veteran's death due to squamous cell carcinoma of the lung caused by asbestos exposure, the Board finds that the record on appeal does not contain a credible medical opinion linking the squamous cell carcinoma of the lung that caused the veteran's death to his work at that Naval Repair Base in 1945 and 1946, to his shipboard service, to his in-service job repairing medical equipment, or to any other in-service event. While it is true that Dr. Desai opined that "possible asbestos exposure during [the veteran's] service in the Navy may have contributed to his developing lung cancer and to his demise," the Board does not find this opinion to be probative in light of the fact that the cancer (squamous cell carcinoma of the right lung) that led to the veteran's death originated in the bronchi and therefore could not have been caused by asbestos exposure - lung cancer associated with asbestos exposure originates in the lung parenchyma. See M21-1, Part VI, par. 7.21(a)(3); Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Moreover, the record on appeal is otherwise negative for a medical opinion relating the squamous cell carcinoma of the right lung that led to the veteran's death to any event in military service. Accordingly, because the weight of the evidence does not show that the veteran's squamous cell carcinoma of the lung was caused or aggravated by asbestos exposure while in military service, the Board finds that the appellant's claim must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.312 (2003). In reaching the above conclusions, the Board has carefully considered the appellant's written statements to the RO as well as her personal hearing testimony. At these times, she alleged, in substance, that the veteran's in-service job as a Navy diver aboard two ships as well as his subsequent job repairing medical equipment for the Air Force exposed him to asbestos which caused the lung cancer that led to his death. However, a review of the record on appeal also shows that the veteran, before entering military service, worked at a shipyard - a job that the M21-1 also lists as having higher incidents of asbestos exposure. The claim is further muddied by the fact that the veteran, during his second period of military service and following his separation from military service, worked at a similar job (repairing medical equipment) which job is not listed by the M21-1 as having higher incidents of asbestos exposure. Nonetheless, the Board finds that the appellant is competent under the law to describe symptoms of the veteran that she witnessed. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, inasmuch as the appellant is offering her own opinion as to the relationship between the veteran's lung cancer and military service, the Board notes that the record does not indicate that she has any medical expertise. Id. Therefore, her assertion of medical causation is not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). Accordingly, her statements do not act as probative evidence as to the issue on appeal. Thus, inasmuch as there is no competent medical evidence or opinion of record either linking the veteran's fatal lung cancer to his military service and, in particular, no probative evidence showing that he was exposed to asbestos while on active duty in the military, service connection for the cause of the veteran's death, allegedly form lung cancer due to asbestos exposure is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim for service connection for the cause of the veteran's death, claimed as due to asbestos exposure, is denied. The claim for entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ______________________________________________ N. R. Robin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2