Citation Nr: 0920022 Decision Date: 05/29/09 Archive Date: 06/08/09 DOCKET NO. 06-00 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for cause of death and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The Veteran had active service from August 1943 to December 1954. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an unappealed April 2000 decision, the RO denied service connection for cause of death because the evidence did not show that the Veteran died while in service, died of a service-connected condition or was totally disabled because of his service-connected conditions at the time of his death. 2. Evidence received subsequent to the April 2000 RO decision is evidence not previously submitted that relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran died in February 2000. The death certificate identified the immediate cause of death as respiratory failure due to chronic obstructive pulmonary disease. 4. The Veteran was not service-connected for any disabilities at the time of his death. 5. The competent medical evidence of record does not show that the Veteran's cause of death is related to in-service asbestos exposure or otherwise to active military service. CONCLUSIONS OF LAW 1. The April 2000 RO rating decision is final. 38 U.S.C.A. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. New and material evidence has been presented, and the claim of entitlement to service connection for cause of death is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2008). 3. A disability incurred in or aggravated by military service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). 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); 38 C.F.R. § 3.159(b) (2008); 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; (3) that the claimant is expected to provide. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). 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). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In correspondence dated in January 2005, the RO advised the appellant of what the evidence must show to establish service connection for cause of death and described the type of information and evidence she needed to provide in support of her claim. The RO also explained to the appellant what evidence VA was responsible for obtaining and would make reasonable efforts to obtain on her behalf in support of her claim. While the January 2005 VCAA notice letter did not advise the appellant regarding the elements of effective date and degree of disability and did not inform the appellant of her need to submit new and material evidence to reopen her claim, such notice defects constitute harmless error. The appellant's claim is found to be reopened by way of the submission of new and material evidence, thus, the lack of notice with respect to the request to reopen clearly does not harm the appellant. However, the appellant's claim is being denied on the merits for reasons explained in greater detail below and, consequently, any lack of notice with respect to the degree of disability and effective date elements is moot as no disability rating or effective date will be assigned. During the course of this appeal, the U.S. Court of Appeals for Veterans Claims (Court) held that for dependency and indemnity compensation (DIC) benefits, VCAA notice must further 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. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). The Board notes that the second and third Hupp notice elements were satisfied in the January 2005 VCAA notice letter. Indeed, the RO specifically explained that it must be shown that the condition causing the Veteran's death had its onset in service or was permanently aggravated by military service to establish entitlement to service connection for cause of death. In regard to the first element, the Board notes that the appellant was not notified of the conditions of which the Veteran was service-connected at the time of his death. However, as the Veteran was not service-connected for any disabilities during his lifetime and the RO clearly explained that the Veteran was not service connected for any disability during his lifetime and had not claimed service connection for any condition during his lifetime in the December 2005 statement of the case (SOC), the Board finds that there is no prejudice to the appellant despite the absence of such notice as she can be reasonably expected to know that the Veteran was not service-connected for any disability during his lifetime. The Board further notes that the RO provided the appellant with a copy of the May 2005 rating decision, the December 2005 SOC, and the February 2006 supplemental statement of the case (SSOC), which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the appellant that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. In regard to VA's duty to assist, the Board notes that a medical opinion from a VA physician based on review of the claims folder was obtained. Relevant VA and private treatment records from 1994 to 1999, the Veteran's death certificate, the marriage certificate, several lay statements, copies of pages of the log book from the U.S.S. Ozark, a submission of medical definitions, and service treatment records are also of record. The appellant has not made the RO or the Board aware of any other evidence relevant to this appeal that needs to be obtained. 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. Accordingly, the Board will proceed with appellate review. New and Material Evidence As a preliminary matter, the Board notes that the current claim is one involving entitlement to service connection for cause of death. This claim is based upon the same factual basis as the previous claim filed by the appellant in March 2000, which was denied in the April 2000 rating decision that became final. While it is noted that service personnel records were associated with the claims folder in January 2005, review of such records reveals that they are not relevant to the claim. See 38 C.F.R. § 3.156(c). As such, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2008). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In its April 2000 decision, the RO denied service connection for cause of death because the evidence did not show that the Veteran died while in service, died of a service-connected condition or was totally disabled because of his service- connected conditions at the time of his death. The appellant received notification of the denial of the claim and was advised regarding her appellate rights at that time; however, she did not appeal the decision and it became final. The evidence of record at the time of the April 2000 decision included service treatment records, the Veteran's death certificate, VA and private treatment records dated in 1999, and written statements from the appellant. After review of the evidence associated with the claims folder since April 2000, the Board finds that there is new and material evidence sufficient to reopen the previously disallowed claim. In particular, the Board notes that the appellant submitted several new lay statements in November 2004 that essentially related that the Veteran had respiratory problems shortly after returning from service. The Board notes that the credibility of the lay statements is presumed for the purposes of reopening the claim. Thus, evidence received subsequent to the April 2000 rating decision was not previously considered by VA and relates to an unestablished fact necessary to substantiate the claim. Accordingly, having determined that new and material evidence has been presented, the appellant's claim of service connection for cause of death is reopened. As the appellant has been provided with adequate notice of the evidence needed to establish service connection for cause of death and no further development is required to comply with the duty to assist, the Board may proceed to consider the reopened claim on the merits. Service Connection for Cause of Death The appellant essentially contends that the Veteran was exposed to asbestos while serving as a fireman aboard the U.S.S. Ozark in service and that such exposure caused him to develop chronic obstructive pulmonary disease (COPD), the underlying cause of the Veteran's death from respiratory failure. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected or compensable disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2008). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) 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 death. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board notes that the evidence of record confirms the occurrence of the Veteran's death. In this regard, the death certificate notes that the Veteran died in February 2000 of respiratory failure due to COPD. Nonetheless, the evidence does not show that the cause of the Veteran's death is related to service to include in-service asbestos exposure for reasons explained below. The Board observes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases which provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A. § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; 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). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21-1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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. High exposure to 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). In the present case, the service treatment records are absent of any references to respiratory problems and show that the Veteran's respiratory system was clinically evaluated as normal at discharge. However, the Board finds it likely that the Veteran was exposed to asbestos in service while performing his duties as a fireman in the Navy as it was consistent with the conditions of his service. Nevertheless, the competent medical evidence of record does not show that the Veteran's COPD and emphysema resulted from in-service asbestos exposure. As noted above, a medical opinion was obtained in February 2005 from a VA physician based on review of the claims folder in this case. Upon review of the record, the physician concluded that the Veteran's COPD and emphysema were not caused by exposure to asbestos while the Veteran served as a fireman in the Navy. Instead, the physician concluded that it was at least as likely as not that the diagnosis of COPD/emphysema was caused by the Veteran's chronic tobacco abuse. As the physician is competent to render the opinion and provided a sound and thorough rationale in support of his conclusion, the Board affords the opinion great probative weight. Furthermore, the Board notes that there is no competent medical opinion to the contrary of record. No competent medical examiner has linked the cause of the Veteran's death to service. Although the appellant, the Veteran's former employer, and a fellow soldier that served with the Veteran have asserted that the Veteran had breathing problems upon returning from service and each is competent to report what he or she observed, none is shown to have the requisite medical expertise to diagnose a respiratory disorder or render a competent medical opinion regarding the cause of the veteran's death. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). Consequently, their opinions regarding the medical question of whether the underlying cause of the Veteran's death, COPD, was caused by asbestos exposure or is otherwise related to service is afforded no probative value. For the foregoing reasons, the Board finds that the preponderance of the evidence weighs against the appellant's claim and entitlement to service connection for the cause of the Veteran's death is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the appellant's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs