Citation Nr: 0514796 Decision Date: 06/01/05 Archive Date: 06/15/05 DOCKET NO. 04-01 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Barial, Associate Counsel INTRODUCTION The veteran had active military service in the U.S. Army from March 1953 to December 1954. He died in December 1999. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for cause of death. In October 2003, the appellant testified at an RO hearing. FINDINGS OF FACT 1. The veteran died in December 1999. The cause of death was listed as lung cancer. 2. At the time of the veteran's death, he was not service- connected for any disability. 3. The record does not show that the veteran was exposed to asbestos during his service. 4. The competent medical evidence of record shows that the veteran's cause of death was not related to any injury or disease during the veteran's service, including any exposure to asbestos. CONCLUSION OF LAW No disability incurred in or aggravated by service caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004) redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date. 38 C.F.R. § 3.159 (2004). The United States Court of Appeals for Veteran Claims (CAVC) in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and that the VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should provide any evidence in his possession pertaining to the claim. I. Duty to Notify In this case, the agency of original jurisdiction notified the appellant of the information and evidence necessary to substantiate the claim and the respective responsibilities of each party for obtaining and submitting evidence. This was accomplished by way of a September 2002 VA letter, which is prior to the March 2003 rating decision. The RO notified the appellant of the responsibilities of VA and the appellant in developing the record. Specifically, the RO notified the appellant that VA would obtain all relevant evidence in the custody of a federal department or agency. The RO notified the appellant that some of the veteran's military records might have been destroyed in the 1973 fire at the National Personnel Records Center (NPRC), and that in order to help NPRC reconstruct these records, she should complete the enclosed NA Form 13075. The RO notified the appellant of her responsibility to respond in a timely manner to VA's requests for specific information and to provide a properly executed release so that VA could request the records for her. The RO also requested the appellant to advise VA if there was any other information or evidence she considered relevant to her claim for service connection for cause of the veteran's death, so that VA could help by getting that evidence. The Board notes that the September 2002 VA letter notified the appellant that she had 30 days from the date of the letter to respond. The appellant was further advised that if she did not respond by the end of the 30-day period, her appeal would be decided based on the information and evidence currently of record. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30- day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C.A. § 5103(b)), however, amended section 5103(b) to provide that the one-year limitation in that section should not be construed to prohibit VA from making a decision on the claim before the expiration of the one-year period. This section of the Veterans Benefits Act of 2003 also provides that nothing in the section should be construed to require re-notification or additional notification to the claimant. This amendment is effective as if enacted on November 9, 2000. Consequently, there is no defect with the VCAA notice given to the appellant in this case. The RO notified the appellant why she was not entitled to service connection for cause of the veteran's death in the March 2003 rating decision, and the December 2003 statement of the case. The RO notified the appellant of the laws and regulations pertaining to service connection for cause of death and provided a detailed explanation why service connection was not warranted for cause of death under the applicable laws and regulations based on the evidence provided. Upon a review of the claims folder, the Board finds that the appellant and her representative were notified of the evidence and information necessary to substantiate her claim for service connection; were notified of the respective responsibilities of VA and herself as it pertained to who was responsible for obtaining such evidence; and also were notified to submit all relevant evidence she had to the RO. Thus, the Board concludes that the duty to notify the appellant has been satisfied under 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. II. Duty to Assist VA also must make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2004). The Board recognizes that it has a heightened obligation to assist the appellant in the development of her case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule when records in the possession of the government are presumed to have been destroyed. See O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). In September 2002, the RO requested from the NPRC any information relating to asbestos exposure or the jobs the veteran performed in service. The NPRC responded in March 2003 that some of the veteran's military records might be fire-related, but provided the available pertinent documents showing the jobs the veteran performed in service. The Board finds that, based on the RO's efforts and the response from the service department, it is reasonably certain that the rest of the veteran's military records are no longer available and that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3)); see also Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The evidence includes service medical and personnel records, VA medical records dated from July 1996 to December 1999, a December 1999 death certificate, and articles on lung cancer. The Board finds that there are no additional medical treatment records necessary to proceed to a decision in this case. In addition, for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Here, VA obtained a VA medical opinion in October 2003, regarding the pertinent issues in this matter. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue of service connection is required to comply with the duty to assist under the VCAA. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis The appellant filed a claim of service connection for cause of death in August 2000. In support of her claim, she stated that her husband was a former veteran, who died of lung cancer in December 1999, and that this was a result of his exposure to asbestos in service. Specifically, she stated that the barracks in the Army bases where the veteran lived were full of asbestos and that he was exposed to asbestos constantly. She noted that the veteran smoked for several years including while he was in the military, but that he quit in 1981, approximately 18 years before his death. The appellant submitted a subsequent statement that while the veteran was stationed in Korea in 1953, he told her that he went over on a ship and spent his time on the crossings in the "hole," and that this was a great place for asbestos exposure. She stated that after service in September 1956, the veteran was seen in the VA hospital but the results were unknown. She indicated that over the years, the veteran had numerous health problems and was hospitalized many times. She stated that he often would have pulmonary function tests before surgery and always would laugh when a technician would tell him that he could tell the veteran never smoked with those lungs. The appellant also submitted an asbestos exposure questionnaire, on which she stated that the veteran was exposed to asbestos during active duty from traveling to (16 days) and from (16 days) Korea on board a ship, totalling approximately 32 days on the two occasions. She indicated that after service, he worked in retail doing lumber and care sales, and that he was not exposed to asbestos or toxic chemicals in any occupation since service. She stated that the veteran had a history of tobacco use, smoking one pack a day, but that he had not smoked since 18 years before his death. In sum, the appellant contends that the veteran's cause of death is related to his service and that as the veteran's surviving spouse, she is entitled to compensation. The surviving spouse of a veteran who had a service-connected disability that was the principal or contributory cause of his death, which occurred after December 31, 1956, may be eligible for VA death benefits. See 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of the veteran's death, the evidence must establish that the service-connected disability was either the principal or a contributory cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2004). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). As to claims involving service connection for asbestos- related diseases, there are no special statutory or regulatory provisions. 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. VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21(d)(1). The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21- 1, Part VI, 7.21(a)(1). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(c). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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 and pipe products, military equipment, etc. M21-1, Part VI, 7.21(b)(1). See VAOPGCPREC 4-2000. The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. However, the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGCPREC 4-2000. The death certificate shows that the veteran's cause of death was listed as lung cancer. At the time of his death, he was not service-connected for any disability. The service medical records do not show any treatment or complaints of lung cancer. The DD-214 Form shows that the veteran's most significant duty assignment in service was listed as Battery C, 1st Battalion, Field Artillery, in the US Army as a forward observer. The personnel records do not show that his military occupational specialties were any of the major occupations involving exposure to asbestos. The DD-214 Form also noted that his main civilian occupation prior to service was a yardman at a lumber company from 1951 to 1953. A December 1976 VA examination report shows that the lungs were clear and resonant with no areas of localized wheezing or rales. A November 1977 private hospital record shows a diagnosis of chronic bronchitis, smoker's type and possible pulmonary embolus. The veteran's lungs were reported as clear to auscultation on VA outpatient treatment records dated from July 1996 to June 1998. A December 1998 VA outpatient treatment record shows that an enlarging mass with distal atemlectasis in the lungula was identified on the lung nodule pathway. A January 1999 VA outpatient pulmonary follow-up report shows the veteran was seen for a bronchoscopy in December 1998 after a chest x-ray and CT scan revealed a left lingular elliptical mass. The bronchoscopy showed a large clot in the lingular bronchus. After removing the clot, there were a few enlarged glands noted in the lingual; however, no mass intruding was seen. One of the four brushings from the area showed atypical cells with moderate and acute chronic inflammation and metaplasia, but no clear cytopathology. The veteran stated that he first began noting streaky hemoptysis approximately six months previously. This accelerated in December 1998 when he had four or five episodes of frank hemoptysis at four to five tablespoons at a time. His social history included a 60 pack-per-year smoking history without occupational exposure. It was noted that he quit smoking 18 years ago. Physical examination showed the chest was clear to auscultation. Pulmonary function tests showed mild obstructive disease. The problem list included left lingular mass, which was noted to be worrisome considering enlarging size, hemoptysis, smoking history, mild airflow obstruction seen on pulmonary function tests, and clinically mild emphysema due to his long smoking history. A January 1999 VA pre-surgical evaluation shows that physical assessment of the lungs revealed inspiratory wheezes on the left. The remainder of the lung fields remained clear. In January 1999, a VA lung cancer conference note shows that the veteran had a six-month history of streaky hemoptysis increasing since Christmas, with a follow-up chest x-ray showing an increasing lingular mass. It was noted that the veteran historically had a mass that apparently had been visualized since 1986, and which was slowly growing in size. A CT showed a 4.5 cm lingular mass and a 1.5 m questionable scar in the right upper lob posterior segment, as well as several other less than 5 mm nodules. There was no lymphadenopathy noted. It was noted that a bronchoscophy in December 1998 revealed no intrabronchial tumors, but there was a large clot in the left lower lobe bronchus. There was no mass appreciated. The bronchoscopy showed some atypia, but it was non-diagnostic. At the conference, the veteran was clinically staged at T2, N1, M0, and it was recommended that he have the lingular mass removed surgically. A January 1999 VA emergency evaluation shows the veteran admitted himself with worsening hemoptysis and chest pain, unrelieved by prescription medication. Physical examination of the lungs revealed coarse breath sounds throughout. A February 2, 1999 VA microscopic examination report shows small cell carcinoma of the left upper lobe of the lungs. A February 2, 1999 VA surgical pathology report shows a preoperative diagnosis of left upper lobe mass. The postoperative diagnosis was large cell carcinoma left upper lobe. The intraoperative pathology consultation showed poorly differentiated carcinoma; cannot exclude small cell carcinoma. A February 1999 VA general medical follow-up shows the veteran is status post surgery of left upper lobe mass on February 2, 1999. The pathology report showed a small cell carcinoma. It was noted that the veteran also now has non- small cell cancer. A February 1999 VA hematology/oncology report shows the veteran recently underwent a left upper lobe mass resection, which revealed small cell lung cancer. His symptoms began about six months ago and included a streaky hemoptysis cough, and then in December intermittent chest pains. He had a chest x-ray, which revealed a lingular mass. He underwent bronchoscopy, which was non-diagnostic. On January 27th, he underwent a left upper lobectomy revealing a 2 x 2 x 3.5 cm tumor, which was found to be a mixed small cell lung cancer and non-small cell lung cancer. Physical examination showed that he was afebrile. Lungs were clear except for decreased breath sounds around his thoracotomy scar on the left. The impression was a pathologic stage T2, N0, MX small cell lung cancer. The physician noted that given the metastatic potential of the tumor, the standard of care is to administer some adjuvant chemotherapy. VA hematology/oncology follow-up notes dated from March 1999 to May 1999 show adjuvant chemotherapy treatments for small carcinoma of the lung, status post resection of a T2, N0 lesion. Physical examination revealed that his temperature was afebrile, and that the lungs were clear; although there were some diminished breath sounds in the left base. A June 1999 VA hematology/oncology follow-up note shows the veteran had completed his adjuvant chemotherapy, and would enter a period of quarterly observation. Because of his multiple medical problems, he was not found to be a good candidate for chest radiation for limited stage lung cancer. Regarding his current symptoms of shortness of breath and cough, the physician noted that this sounds most compatible with bronchitis, particularly since the veteran has had a slight fever. In July 1999, a VA outpatient treatment report showed a few rales at the left base of the lungs. The temperature was 98.3. An August 1999 VA radiology examination report shows that a helical CT was performed through the veteran's chest and upper abdomen. The impression was no evidence for malignant nodule or mass. There was left lower lobe scarring and atelectasis, rounded atelectasis, diffuse left pleural abnormality, and sub-centimeter right hepatic hypoattenuation. It was noted that previous CT's obtained showed the hepatic abnormality, while small, was increasing in size since February 1999 and December 1998. A September 1999 VA outpatient treatment report shows an impression of small-cell lung cancer with central nervous system metastasis and probable increasing disease in the periphery. It was noted that the veteran currently was not in the position where he would tolerate further chemotherapy, and it was suggested that he have a re-evaluation in two to three months. An October 1999 VA hematology/oncology follow-up report shows a poor performance status. The physician noted that it could be assumed that these symptoms might be due to recurrence of cancer or some process related to that. In December 1999, the veteran was discharged to home hospice care. VA medical records of follow-up care in December 1999 indicate that the cancer had metastasized to the brain. The veteran died in December 1999 of lung cancer. An October 2003 VA examination report shows the veteran's claim file was reviewed. The examiner noted the veteran's history of being diagnosed with lung cancer in December 1998, and that he underwent a left upper lobe resection in January 1999. She noted that the pathology report revealed two types of histology, primarily small-cell carcinoma, but additionally, a very poorly-differentiated squamous cell carcinoma. The veteran also had findings of old granulomatous disease with a calcified nodule, and a noncaseating granuloma of the lymph node. The remainder of the left upper lobe showed a sclerotic nodule, which was consistent with old granuloma. She found no asbestos-related histology comments in the pathology report. She noted that the veteran apparently smoked one pack of cigarettes per day for many years, but quit 18 years prior to his diagnosis of lung cancer. Regarding asbestos exposure, she noted that the veteran was not in the U.S. Navy, but did report traveling to Korea on a ship, and working below deck. The veteran did not report any asbestos exposure through occupational activities after the military. The examiner noted that there were multiple chest x-rays, mostly from 1999, as well as a chest computed tomography scan from August 1999. The computed tomography scan showed some pleural thickening associated with atelectasis and scar, but nothing regarding pulmonary fibrosis or any indication of calcified pleural plaques that might indicate asbestos exposure. Upon review of the veteran's entire claims file, the examiner noted that it appeared as though the veteran died of metastatic lung cancer. The veteran had no radiologic evidence on chest x- rays or the computed tomography scan provided in the claims file of asbestos-related disease. She also could find no indication of a prior diagnosis of asbestosis. The examiner thus found that on reviewing the veteran's entire claims file that "it is not likely that asbestos exposure played a role in the [veteran's] terminal illness or death." This is the only medical opinion of record addressing the etiology of the veteran's cause of death. After a careful review of the record, the Board concludes that the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death. The Board notes that the veteran was not service-connected for any disability, including lung cancer. The veteran's service medical records are negative for any complaints, symptoms, findings or diagnoses related to his terminal lung cancer, and the first diagnosis was not until 1998, which is many years after service. Although a January 1999 VA medical record noted a history of lingular mass visualized since 1986, this is still many years after service. In addition, there is no indication in the record that the veteran was exposed to asbestos in service, as the appellant contends; or that even if asbestos exposure took place, that this caused the veteran's death. The DD-214 Form does not show that the veteran had a major occupation typically involving exposure to asbestos. M21-1, Part VI, 7.21(b)(1); see VAOPGCPREC 4-2000. Moreover, the only medical opinion of record indicates that it is not likely that asbestos exposure played a role in the veteran's fatal lung cancer. The Board notes the appellant's and her representative's reference to news articles on the relationship between lung cancer and asbestos exposure. However, these articles do not address the facts specific to the veteran's case. Moreover, even if the record showed that the veteran was exposed to asbestos in service, which it does not, these articles only raise the possibility that there may be some relationship between lung cancer and asbestos, and do not show a direct causal relationship between the two. Thus, these articles do not entitle the appellant to service connection for the cause of the veteran's death. See Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991). Although the appellant asserts that the cause of the veteran's death is related to asbestos exposure in service, as a lay witness, she is not qualified to offer such medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159 (a)(2). Thus, while the Board has considered the veteran's lay assertions, they do not outweigh the medical evidence of record, which shows that the veteran's cause of death was not related to his service, including any exposure to asbestos. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In sum, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for cause of death. In making this decision, the Board has considered the benefit-of-the-doubt-doctrine, but it does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for cause of death is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs