Citation Nr: 0630456 Decision Date: 09/28/06 Archive Date: 10/04/06 DOCKET NO. 04-36 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for lung cancer, due to asbestos exposure, for accrued benefits purposes. REPRESENTATION Appellant represented by: Peter A. Benz, Attorney-at-law ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1952 to December 1953. He died June [redacted], 1998. The appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for lung cancer, due to asbestos exposure, for accrued benefits purposes. FINDINGS OF FACT 1. At the time of the veteran's death in June 1998, he had a claim pending for service connection for lung cancer due to asbestos exposure. The appellant filed her claim for accrued benefits within one year of his death. 2. At the time of the veteran's death, the veteran provided competent factual evidence that he was exposed to asbestos in service. 3. At the time of his death, the veteran had lung cancer. 4. There was competent medical evidence at the time of the veteran's death linking asbestos exposure to lung cancer. CONCLUSION OF LAW Lung cancer was incurred as a result of asbestos exposure in service, for the purposes of accrued benefits. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5102, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.100 (2005); M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist and Notify Due to the favorable findings in the claim of entitlement to service connection for lung cancer due to asbestos exposure, for the purposes of accrued benefits, it is unnecessary to do a full discussion on the duty to assist and notify. However, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present appeal, since there is a favorable claim in this regard, all questions as to the disability rating and appropriate effective date will be addressed by the RO upon implementation of the decision. II. Accrued Benefits Periodic monetary benefits to which a veteran was entitled at the time of death, under existing ratings or decisions, or based on evidence of record at the date of death (i.e., accrued benefits), and due and unpaid for a period not to exceed two years prior to the last date of entitlement, shall be paid to certain survivors, including the veteran's surviving spouse, upon the veteran's death. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2006). An application for accrued benefits must be filed within one year after the date of a veteran's death. Id. Evidence of record at the date of death, for the purposes of evaluating accrued benefits claims, means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (West 2002); Hayes v. Brown, 4 Vet. App. 353 (1993). The veteran filed a claim for service connection for lung cancer due to asbestos exposure in September 1997. He died in June 1998, while the claim was still pending. Although the veteran's claim terminated with his death, VA regulations set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased veteran's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Thus, while the claim for accrued benefits is separate from the claim for service connection filed by the veteran, the accrued benefits claim is derivative of the veteran's claim and the appellant takes the veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1296 (Fed. Cir. 1998). The veteran's surviving spouse filed a claim for accrued benefits in September 1998, within one year of her husband's death. Thus, she is entitled to be considered for accrued benefits as a surviving spouse based upon service-connected lung cancer, due to asbestos exposure, if the evidence warrants entitlement thereto. In adjudicating the appellant's claim for service connection for accrued benefits purposes, the Board can only look at the evidence that was of record at the date of the veteran's death, including records that are deemed to be constructively of record (i.e. VA records). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, topic 29. It lists some of the major occupations involving exposure to asbestos, including 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 and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases 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). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9; see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. In this case, the veteran's service medical records show no findings, treatment, or diagnosis, related to lung cancer. Additionally, the limited service records associated with the claims folder, do not show that he worked in an occupation likely to put him at risk for asbestos exposure. However, it is of record that the veteran's salvaged, service records were presumed subject to a fire in the 1970's, and as a result, VA has a heightened duty to the veteran. See O'Hare v. Derwinski, 1 Vet. App. (1991). The veteran did insist, in a statement to VA, that he worked in the motor pool installing brake linings with asbestos, that he wore asbestos mittens three times a week during drills for changing gun barrels, and also wore the asbestos mittens daily while on line in Korea. Although the veteran is incompetent to render a medical diagnosis regarding the etiology of his lung cancer, see Espiritu v. Derwinksi, 2 Vet. App. 492 (1992), the veteran is capable of testifying to factual matters of which he has first hand knowledge, such as the nature of his employment (installing brake linings and wearing asbestos mittens). See Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board finds it credible that the veteran was exposed to asbestos during his period of active duty. Also of record in the claims folder prior to the veteran's death, is a February 1998 medical opinion provided by the veteran's physician, Maria G. Moore, MD. Dr. Moore stated, in pertinent part, that the veteran had recently been diagnosed as having non-oat cell, poorly differentiated carcinoma of the lung. She also related that she was aware that the veteran had a prior history of asbestos exposure and that the veteran was a smoker. She indicated that asbestos exposure increases the risk of a patient developing lung cancer and that there was some evidence that the combined risk factors of asbestos exposure and smoking, increased the risk of lung cancer. A bronchoscopy performed in January 1998, indicated that a needle biopsy was performed and provided the same diagnosis as reported by Dr. Moore. Based on the veteran's inservice occupation, which exposed him to asbestos, the diagnosis of lung cancer, and the opinion rendered by his private physician, that the veteran's asbestos exposure increased his risk for lung cancer, resolving all reasonable doubt in the veteran's favor, service connection for lung cancer due to asbestos exposure for accrued benefits purposes, is warranted. ORDER Service connection for lung cancer due to asbestos exposure, for accrued benefits purposes, is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs