Citation Nr: 0618065 Decision Date: 06/20/06 Archive Date: 06/27/06 DOCKET NO. 02-14 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran served on active duty from April 1953 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Review of the claims file reflects that, per her request, the appellant was scheduled for a hearing before a Veterans Law Judge in April 2004. In a communication with the RO prior to the date of this hearing, the appellant indicated that she no longer desired a Board hearing. Thus, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704. The case was remanded in August 2004 and has now been returned for further appellate consideration. FINDINGS OF FACT 1. The veteran died in August 2000 due to chronic obstructive pulmonary disease (COPD) due to smoking tobacco products and a contributory factor was his long-term ventilator dependence. At his death service connection was not in effect for any disability nor was any claim pending for service connection for a disability. 2. The veteran smoked tobacco products during service and after military service. 3. The veteran may have been exposed to asbestos during service but neither asbestosis as a result of asbestos exposure nor radiological pulmonary changes consistent with asbestosis is shown. 4. The veteran's chronic pulmonary disability first manifested years after active service and is not otherwise shown to be of service origin. CONCLUSIONS OF LAW 1. Because the claim for the cause of the veteran's death, due to lung disease, was received after June 9, 1998, there is no legal basis for compensation based on tobacco use in service and this portion of the claim for service connection for the cause of the veteran's death is dismissed. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2005). 2. The veteran's death was not proximately due to or the result of disability incurred or aggravated during service. 38 U.S.C.A. § 1110, 1131, 1310 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) Effective November 9, 2000, the VCAA describes VA's duties to notify and assist claimants in substantiating VA benefit claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Upon receipt of a complete or substantially complete application, VA must inform the claimant of information and medical or lay evidence not of record: (1) necessary to substantiate the claim; (2) that VA will seek to obtain; (3) that the claimant is expected to provide; and (4) request the claimant to submit any relevant evidence in the claimant's possession in accordance with 38 C.F.R. § 3.159(b)(1). 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Charles v. Principi, 16 Vet. App. 370, 373-74(2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). VA is not required to provide assistance if there is no reasonable possibility that it would aid in substantiating the claim. Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). For reasons which will be explained, because there is no possibility of substantiating the claim for service connection for the cause of death due to smoking tobacco products during service, there is no duty to assist in this aspect of the claim for service connection for the cause of the veteran's death. In March 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) holding that the VCAA notice requirements apply to all five elements of a service connection claim which are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. However, this appeal did not stem from an initial grant of service connection. In the present appeal, the VCAA notice did not cite the law and regulations governing nor describe the type of evidence necessary to establish an effective date for the disability on appeal. Despite this, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As the Board concludes below that the preponderance of the evidence is against the veteran's claim for service connection for the cause of the veteran's death, any question as to the appropriate effective date is moot. The VCAA notice should be provided before any initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004) ("Pelegrini II"); see also Mayfield v. Nicholson, 444 F.3d. 1328 (Fed. Cir. 2006). Here, the appellant was notified of the VCAA in July 2001, prior to the rating decision which is being appealed, in accordance with the timing requirements of the VCAA. Also, in Mayfield v. Nicholson, 444 F.3d. 1328 (Fed. Cir. 2006) it was held that, even if there was an error in the timing of the VCAA notice, i.e., it did not precede the initial RO adjudication, it could be cured by affording the claimant a meaningful opportunity to participate in VA's claim processing such that the essential fairness of the adjudication was unaffected. The appellant was notified of the VCAA in a July 2001 RO letter. Even prior to that, in January 2001, she was informed that the veteran had not established service connection for his fatal disability during his lifetime and, so, she had to submit evidence which would show that he incurred a disability during service which eventually caused his death. The RO unsuccessfully attempted to obtain private clinical records from the College Clinic and the Western New Mexico Medical Group. The latter reported that they had no record of the veteran. By RO letter of October 2001, the appellant was informed of the RO attempts to obtain these records and she was also asked to contact those facilities to have the records sent to VA. Information on file indicates that the veteran's service medical records (SMRs) were destroyed in a fire and that there are no records in the possession of the Office of the Surgeon General (SGO). So, in October 2001, the RO wrote the appellant requesting more information about any inservice clinical records. However, despite information apparently obtained from the appellant, additional attempts to locate SMRs have been unsuccessful. Contacting the National Personnel Records Center (NPRC) and the National Archives and Records Administration has not been fruitful. After the case was remanded, the appellant was requested to execute and return a release to obtain records from the Rehoboth McKinley Christian Health Clinic but the appellant did not respond. Additionally, by the Statement of the Case (SOC) of July 2002 the appellant was advised of the governing law and regulations. Also, a VA medical opinion was obtained following the August 2004 Board remand. 38 U.S.C.A. § 5103A(d). The appellant requested a travel Board hearing, which was scheduled in November 2003 but postponed at the appellant's request. It was rescheduled for April 2004 but the appellant cancelled the hearing for unexplained medical reasons. Since then, she has not requested that the hearing be rescheduled. Accordingly, the Board will review his case as if she withdrew her request for a personal hearing. See 38 C.F.R. § 20.704(d) (2005). Because the claim for the cause of death as due to smoking tobacco products during service is being denied as a matter of law, the VCAA is inapplicable to this aspect of the claim. See Manning v. Principi, 16 Vet. App. 534, 542 - 43 (2002) (the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter); citing Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law), Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence is dispositive). The more recent statements and correspondence from the appellant and her representative do not make reference to or otherwise mention any additional treatment from other sources (e.g., private or non-VA, etc.). 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). Nicotine Dependence In 1998, Public Law No. 105-206 (a bill relating to the Internal Revenue Service) added section 1103 to 38 U.S.C.A. that prohibits service-connected disability and death benefits based on tobacco use. In 2001, section 3.300 was added to 38 C.F.R. implementing the law, effective from June 10, 1998. See 66 Fed. Reg. 18195- 18198 (April 6, 2001). In Kane v. Principi, 17 Vet. App. 97 (2003) the U.S. Court of Appeals for Veterans Claims (Court) noted that 38 U.S.C.A. § 1103(a) states that "disability or death shall not be considered to have resulted from [] the line of duty [] on the basis that it resulted from [] the use of tobacco products [] during the veteran's service" and that the effective date of 38 C.F.R. § 1103(a) was June 9, 1998. The Court upheld the validity of the implementing regulation, at 38 C.F.R. § 3.300(a) and (c), and the June 9, 1998, effective date of those regulatory provisions, even though the regulation was published after that date. 38 C.F.R. § 3.300(a) states that: For claims received by VA after June 9, 1998, a disability or death will not be considered service- connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 C.F.R. § 3.300(c) states that: For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under 38 C.F.R. § 3.310(a). Since the veteran died in August 2000, it is undisputed that the appellant's claim for service connection for the cause of the veteran's death was received after the above June 9, 1998, cut-off date. So, service connection cannot be granted for the cause of the veteran's death as being due to a lung disorder, to include COPD, claimed as due to inservice tobacco use under these circumstances as the law and regulation in effect after June 9, 1998, specifically prohibits this. When, as here, the law and not the facts are dispositive of the claim, it must be dismissed-analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Asbestos The death certificate shows the immediate cause of the veteran's death as COPD and the underlying cause of death being smoking and long-term ventilator dependence being a contributory factor. The appellant has claimed service connection for the cause of the veteran's death on the basis of alleged inservice asbestos exposure in his military duties as a mechanic fixing and adjusting brakes. At the time of the veteran's death, service connection was not in effect for any disability nor was there any claim pending for service connection for a disability. He was in receipt of VA pension benefits and, also, a rating decision in January 2002, after his death, granted entitlement to special monthly pension (SMP) based on need for regular aid and attendance. With respect to the contention that the veteran's fatal lung disease was due to inservice exposure to asbestos, the Board notes there are no laws or regulations specifically dealing with claims for service connection for residuals of exposure to asbestos. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and decisions of the Court and opinions of VA's General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate a claim of disability as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). 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)); 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 inservice 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 service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to VA 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. With the above facts in mind, the Board concedes that the veteran's extensive work in the military resulted in exposure to asbestos, consistent with the M21-1. In this regard, in O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) the Court held that where, as in this case, the SMRs are presumed destroyed, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. While there is a heightened duty to consider the benefit of the doubt doctrine when a veteran's SMR's are destroyed, this does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. This misinterprets 38 U.S.C.A. § 5107(a). Rather, the case law of the Court does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt doctrine. In other words, the legal standard for proving a claim is not lowered, rather, the obligation of VA to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the destruction of the veteran's SMRs in a fire (or even being unable to otherwise simply locate the SMRs) does not create an adverse-presumption rule. In Cromer v. Nicholson, 19 Vet. App. 215 ( 2005) the Court noted that other courts had held, on the principles of equity, that when the Government had destroyed records, there was an adverse- presumption rule that had historically been associated with bad-faith destruction of records and more recent cases had applied it to negligent destruction or loss of records. But, in Cromer, Id., the Court noted that there was no statutory basis for such a presumption nor a basis in the Court's prior case law, including Ashley v. Derwinski, 2 Vet. App. 62, 65 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Moreover, in Cromer, Id., the Court noted that the appellant had not demonstrated either bad faith or negligent destruction of records by fire in 1973 at the National Personnel Records Center and the Court declined to adopt the adverse presumption rule that had been adopted by other courts. Nevertheless, the Board will concede that the veteran was exposed to asbestos during service. However, 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). Moreover, the veteran also apparently had civilian occupational exposure to particulate matter. And since this exposure occurred after his service in the military concluded, it cannot serve as a predicate for granting service connection for the cause of his death. A VA medical opinion was obtained in April 2005. The VA physician reported having reviewed the veteran's claim files, noting that they did not include the veteran's SMRs. The physician noted that because the death claimed related to asbestos exposure during service, the effects of which would not be apparent for many years after discharge, the absence of the SMRs was largely irrelevant. The physician noted that the veteran died of end-stage emphysema at a private hospital and that for 160 days prior to admission to that facility he had been on a ventilator at a VA hospital. During the last five years of his life, the veteran had multiple hospital admissions for severe COPD, with documented respiratory failure, in terms of elevated carbon dioxide since 1993, and cor pulmonale by echocardiogram in 1994. His last spirometry in 1997 showed very severe COPD. Two chest CT scans in 1998 did not show any evidence of pulmonary fibrosis consistent with prior asbestos disease. He did have small bilateral effusions, but since he had documented cor pulmonale since 1995 this was most likely the etiology. It was further noted that the veteran had smoked one to three packs of cigarettes from the age of 17 to the age of 57, leading to an approximately 50-pack year smoking history. During service from August 1953 to August 1956 he had worked as an auto mechanic on brakes, which he had reported was a very dusty job. Apparently, he also worked as an auto mechanic after service discharge. It was reported that he had had very severe COPD, with emphysema by chest CT scan, and evidence of airflow obstruction on pulmonary function tests. The last time a pulmonary function test was done, in 1996, including testing of total lung capacity, there was no evidence of restrictive disease. In fact, his total lung capacity was normal. The assessment was that the evidence indicated that the veteran had severe COPD from smoking. He did not have evidence of pulmonary fibrosis. Although he may or may not have had significant asbestos exposure during service, it did not appear to have contributed to his death, as there was no evidence of lung cancer, pleural disease or pulmonary fibrosis. It is unlikely that the veteran's exposure while in the military contributed to his death. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for the cause of the veteran's death due to lung disorder, to include COPD, claimed as due to inservice tobacco use, is dismissed. Service connection for the cause of the veteran's death is denied. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs