Citation Nr: 0421159 Decision Date: 08/03/04 Archive Date: 08/09/04 DOCKET NO. 03-19 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from September 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. That rating decision denied entitlement to service connection for the cause of the veteran's death. The appellant is the widow of the veteran. FINDINGS OF FACT 1. VA has obtained all relevant evidence necessary for an equitable disposition of the appeal. 2. The veteran died in November 2000, at the age of 74. The immediate cause of death was small cell carcinoma of the lung. No other medical disability was listed as contributing to death. 3. The veteran was not service-connected for any disability at the time of death. 4. There is no competent medical evidence of lung cancer during the veteran's active military service or during the first post service year. 5. There is no medical opinion linking the veteran's fatal small cell carcinoma of the lung with his active military service or to any alleged asbestos exposure during service. 6. There is no medical evidence showing that a disability of service origin or a service-connected disability caused or contributed to the veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by active service, or which could be presumed to have been incurred in service, did not cause the veteran's death and did not cause or contribute substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 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, 3.326 (2003). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, VA notified the appellant by a letter dated in May 2001, of what evidence she needed to submit to substantiate the claim for service connection for the cause of the veteran's death. The duty to notify the appellant of necessary evidence and of responsibility for obtaining or presenting that evidence has been fulfilled. Quartuccio, 16 Vet. App. at 187. The United States Court of Appeals for Veteran Claims (Court) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable rating decision on a claim for VA benefits. In this case, the claimant was provided a VCAA notice letter in May 2001 prior to the May 2002 RO rating decision. Third, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained all the relevant records related to the claim. Specifically, VA has obtained the veteran's service medical records, private medical records, death certificate, and a medical opinion. Therefore, the duty to notify of inability to obtain records has been satisfied in this case. Id. Thus, VA's duty to assist has been fulfilled. II. Cause of Death Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service connected disability to be a contributory cause of death it must have contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, are not held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs 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 disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Additionally, 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, consideration of 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). In this case, the death certificate shows that the veteran died in November 2002, at the age of 74. The immediate cause of death was small cell carcinoma of the lung. No autopsy was conducted, and no other medical disability was listed as a significant condition contributing to death but not resulting in the underlying cause of death. The veteran had active military service from April 1941 to October 1945. At the time of his death the veteran was not service-connected for any disability. Therefore, in deciding the claim for service connection for the cause of the veteran's death, the Board must also consider whether the disability that caused the veteran's death, namely small cell carcinoma of the lung, may be service-connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.305 (2003). Malignant tumors may be presumed to have been incurred during active military service if such disease is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The appellant, the widow of the veteran, claims that the veteran developed his fatal small cell carcinoma of the lung as a result of exposure to asbestos during active service in the Navy during World War II. In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular has been subsumed verbatim as § 7.21 of VA manual ADMIN21 [hereinafter "M21-1"]. 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); VAOGCPREC 4-2000. M21-1 also provides that: Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21, (a) (1). The evidence of record reveals that the veteran served in the Navy during World War II from September 1944 to June 1946. His discharge papers reveal that his ultimate rating was that of a Storekeeper 3rd Class. The evidence also shows that he served aboard three ships during service: USS Elkhart (APA 191); USS Colbert (APA-145); and USS LSM 312. The veteran's service medical records appear to be complete. They contain entrance and separation examination reports and some treatment records spanning the veteran's period of active service. There is no indication in any of the service medical records that the veteran was diagnosed with small cell carcinoma of the lung during service. As noted in the discussion below, there is also no evidence that the veteran was diagnosed with his lung cancer within the first year after he separated from service. Rather, he was first diagnosed with small cell carcinoma of the lung in 1999 which is over half a century after he separated from active service. The RO obtained a large volume of private medial records dated in 1999 and 2000 related to the diagnosis and treatment of the veteran's fatal lung cancer. A June 2000 consultation report gives the best history of the veteran's fatal cancer. The veteran presented with a cough to his private physician in October 1999. X-ray and CT examination revealed a nodule in the upper left lung. In November 1999 bronchoscopy and biopsy was conducted and revealed that the veteran had small cell carcinoma of the left lung; chemotherapy was initiated to treat the cancer. In June 2000 the veteran was re- evaluated and CT and MRI examination revealed that the veteran had 8 to 10 metastatic lesions scattered throughout his cerebrum and cerebellum. That is, the veteran's lung cancer had metastasized to his brain. This medical history also noted that the veteran smoked one pack of cigarettes a day for the past 50 to 60 years. The other private medical evidence of record consists of the individual test records and treatment records which support the medical history described above. The Board also notes that an August 2000 radiology report reveals a diagnosis of pulmonary cancer and chronic obstructive pulmonary disease (COPD). The RO forwarded the claims file to a VA physician for review. After review of all of the evidence of record, the physician rendered a medical opinion in October 2003. The physician's opinion was that it "is not as least as likely that the veteran's prior asbestos exposure caused or exacerbated his lung cancer." The preponderance of the evidence is against the claim for entitlement to service connection for the cause of the veteran's death. The medical evidence of record establishes that the veteran died as a result of small cell carcinoma of the lung which metastasized to his brain. There is no medical evidence showing that the veteran's lung cancer was present during service or the first year after separation from service. The evidence shows that the veteran was diagnosed with his fatal lung cancer in 1999. The private medical evidence related to the diagnosis and treatment of the veteran's cancer appears to relate the disease to the veteran's long history of smoking. There is no mention of asbestos exposure during service being a causative factor in the veteran's lung cancer. A VA medical opinion was obtained and this stated that asbestos exposure during service did not cause or exacerbate the veteran's fatal lung cancer. As such, the preponderance of the evidence is against the claim. The appellant submitted a letter in February 2004 in which she stated, "I find it very interesting that the sailors were given cigarettes freely." The Board is uncertain if the appellant is claiming that the veteran's tobacco use during service caused his fatal lung cancer. In the same letter the appellant admits that she did not know the veteran during service, and there is not evidence of record indicating if the veteran began smoking during service. However, the claim may not be granted on the basis that the lung cancer is due to tobacco use/nicotine dependence acquired in service. On July 22, 1998, the Internal Revenue Service Restructuring and Reform Act was enacted. That law added 38 U.S.C.A. § 1103(a), which prohibits service connection for disability or death on the basis that it resulted from disease or injury attributable to the use of tobacco products during a veteran's active service for claims filed after June 9, 1998. See 38 U.S.C.A. § 1103(a) (West 2002); see also 38 C.F.R. § 3.300(a) (2003). The law states: Notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C.A. § 1103(a). In the present case, the veteran died in November 2000 and the appellant filed her claim for service connection in April 2001, after the effective date of the new law. Accordingly, because the appellant's claim was filed after June 9, 1998, she cannot establish entitlement to service connection for the cause of the veteran's death due to lung cancer based on in-service tobacco use/nicotine dependence. Concerning the appellant's allegations of asbestos exposure during service, the Board notes that she alleges that during active service aboard Navy ships during World War II that the veteran was exposed to asbestos. M21-1 provides some guidance with respect to occupational asbestos exposure. It states that: (1) Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. (2) High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of African asbestos were used extensively in military ship construction. Many of these people have only recently come to medical attention because the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21, b. The appellant has also submitted a photocopy of Navy OPNAVINST 5100.19C dated January 1994. This document confirms that prior to 1971 "much of the thermal insulation used on navy ships was asbestos." However, this document also specifically indicated that such insulation used aboard ships was in high temperature machinery such as pipes and boilers found in engineering spaces. Review of the veteran's service records reveal that he was a storekeeper and did not hold an engineering rating which would have involved duties in shipboard spaces heavily insulated with asbestos materials. As noted above, "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); VAOGCPREC 4-2000 (65 Fed. Reg. 33422 (2000)). That the veteran served aboard Navy ships which had asbestos insulation installed in them is not in doubt. However, the nature of the veteran's rating and the duties associated does not of itself show that he was exposed to friable asbestos fibers during service. However, even assuming that the veteran was exposed to asbestos during service, the claim may not be granted because there is no medical evidence of record which in any way relates the fatal lung cancer to that exposure. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ KATHLEEN K. GALLAGHER Acting 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