Citation Nr: 0913865 Decision Date: 04/14/09 Archive Date: 04/21/09 DOCKET NO. 07-39 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to March 1953. The Veteran died in August 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2008, the appellant testified during a Travel Board hearing before the undersigned Veterans Law Judge in Detroit, Michigan. A transcript of that hearing is of record. The appellant submitted additional written evidence at the hearing with a written waiver of RO consideration, which was signed by the appellant. FINDINGS OF FACT 1. The Veteran's death certificate lists the Veteran's cause of death as acute respiratory failure due to acute pulmonary embolism, with ischemic heart disease noted as a significant condition contributing to death. 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. The fatal respiratory failure due to acute pulmonary embolism, and ischemic heart disease, as well as asbestosis, were initially demonstrated years after service, and have not been shown by the competent clinical evidence of record, to have been etiologically related to the Veteran's military service. CONCLUSION OF LAW The causes of the Veteran's death, respiratory failure due to acute pulmonary embolism, and ischemic heart disease, as well as asbestosis, were not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310 (West 2002 & West Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In addition, the Court expanded the VCAA notice requirements for a Dependency and Indemnity Compensation (DIC) claim in Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp, the Court held that, when adjudicating a claim for DIC, VA must perform a different analysis depending upon whether a Veteran was service- connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service- connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the Court found in Hupp that the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. While VA is not required to assess the weight, sufficiency, credibility, or probative value of any assertion made in the claimant's application for benefits, the Court held that the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. In this case, an application for burial benefit, which indicated that the claimant was claiming that the cause of death was due to service, was filed by the W.A.T. Funeral home, and authorized by the appellant. In November 2006, VA sent correspondence to the funeral home regarding the criteria for entitlement to service connection for the cause of the Veteran's death. The record does not include a copy of VCAA correspondence to the appellant; however, the November 2007 SOC (issued to the appellant) states that a copy was sent to the appellant. The notice was deficient in that it did not include notice that an effective date for the award of benefits will be assigned if service connection is awarded as required by the court in Dingess/Hartman. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3)that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress accredited representative provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez-Flores, supra. There must be a demonstration that there was no prejudicial error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board finds that the appellant has not been prejudiced by the VCAA notice error. The November2007 Statement of the Case (SOC), under the heading "Pertinent Laws; Regulations; Ratings Schedule Provisions," set forth the relevant criteria for establishing service connection for the cause of the Veteran's death. The appellant was thus informed of what was needed to achieve service connection. Moreover, the appellant's representative, at the November 2008 Travel Board hearing, acknowledged that the appellant was well aware of the criteria for service connection for cause of the Veteran's death. (See transcript, pg. 2). In addition, as service connection is being denied, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant with regard to the lack of notice under Dingess/Hartman. Finally, as the Veteran was not previously service-connected for any disability, the failure of VA to provide notice in accordance with Hupp is not prejudicial. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), his death certificate, newspaper articles, and reports of private treatment and examination. Additionally, the claims file contains the appellant's statements in support of her claim, to include testimony at a Travel Board hearing. The Board has carefully reviewed such statements and testimony and concludes that she has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria Service connection- in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2006). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Arteriosclerosis will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service Connection-Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Service connection-Asbestos The Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, 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 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR 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 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Analysis The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran died in August 2006. The Certificate of Death lists acute respiratory failure due to acute pulmonary embolism as the cause of death. It also notes ischemic heart disease as a significant condition contributing to death. The appellant is seeking entitlement to service connection for the cause of the Veteran's death. She contends that the Veteran's asbestosis, which she avers was diagnosed in 1989, was the cause, or a contributing cause, of the Veteran's death. The appellant avers that the Veteran worked in the motor pool and ammunition dump in service. She contends that while working in these areas, the Veteran was exposed to asbestos in packing, gaskets, brake linings, seals, clutches, pumps, generators, insulation, fans, switches, electrical motors, values, insulated asbestos panel boards, cable, tape, wire, compressors, and circuit breakers. Moreover, she contends that the Veteran lived in a tent while serving in France, during which time he was exposed to asbestos from the backboard wall of a potbelly stove utilized in the tent. As noted above, in cases where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The evidence of record indicates that the Veteran's military occupation specialty was ordnance. This occupation is not listed in the M21-1MR as an occupation that has a higher incident of asbestos exposure. A June 2003 private physician's letter indicates that the Veteran averred he was a truck driver in the Army. The Veteran's STRs are negative for any complaints or treatment of asbestosis or lung disability, or heart disease. The March 1953 separation medical examination report indicates normal lungs, heart, vascular system and chest upon clinical examination. His blood pressure was 188/82. The earliest clinical evidence of record regarding asbestosis is an April 2003 private physician report which reflects that the Veteran gave a history of exposure to asbestos. A June 2003 private physician's letter indicates that the Veteran worked in a shipyard for three months, and worked in a cement plant for approximately 50 years prior to, and subsequent to, military service. The record reflects that the Veteran gave an occupational history of working in and around asbestos throughout his multi-decade employment at the cement plant. He further indicated that 75% to 80% of the time, he worked under "cloud-like" dust conditions from asbestos at the cement plant. The Veteran noted that he believed some of the heaviest exposures occurred in the power house while doing repair and maintenance work. He also stated that he would knock off insulation and work inside furnaces and boilers in the cement plant. The record is negative for any statements by the Veteran regarding exposure to asbestos while in the military. The examiner opined that the Veteran's diagnosis of asbestos was based the Veteran's symptoms, and the Veteran's long history of exposure to asbestos and asbestos related products. Private medical records dated in August 2006 note that a CT scan of the chest at that time showed bilateral pulmonary embolism. It was noted that the Veteran had no prior history of pulmonary embolism or deep vein thrombosis. It was noted as medical history that the veteran had coronary artery disease, had had coronary angioplasty and stent placement done in 2002, and had had a myocardial infarction in 2003. It was also reported that he had a history of hypertension for about four years. There is no competent medical evidence that the Veteran's fatal disabilities, initially clinically demonstrated years after service, are etiologically related to service, to include any in-service asbestos exposure, or any other incident of service. Moreover, there is no competent evidence of record that establishes that the Veteran was exposed to asbestos in service. As noted above, in order to warrant service connection, there must be evidence of a current disability causally connected to the Veteran's active military service. As there is no such evidence of record, service connection is not warranted. In addition, there is no medical evidence of record that the Veteran's asbestos was the cause of his death or a contributory factor. As noted above, the Veteran's death certificate lists the cause of death as acute respiratory failure due to acute pulmonary embolism. Although the Board is sympathetic to the appellant, the fact remains that the competent medical evidence of record does not link the Veteran's death to his active duty service, to include any possible asbestos exposure. As the preponderance of the evidence is against this claim, the benefit-of-the- doubt rule does not apply, and the claim for service connection for the Veteran's cause of death must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs