Citation Nr: 1038486 Decision Date: 10/13/10 Archive Date: 10/22/10 DOCKET NO. 08-13 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from October 1943 to March 1946. He died in April 2005. The appellant is his surviving spouse. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Because the appellant lives within the jurisdiction of the RO in Salt Lake City, Utah, that facility retains jurisdiction over this appeal. The appellant testified in support of this claim during a Board videoconference hearing held before the undersigned Acting Veterans Law Judge in July 2008. A copy of the hearing transcript has been associated with the claims file. In March 2009 and April 2010, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's Certificate of Death lists the immediate cause of death as respiratory failure due to (or as a consequence) of ILD (interstitial lung disease) due to (or as a consequence) of asbestosis. 2. At the time of his death, service connection was not in effect for asbestosis. 3. The Veteran served during World War II in the Navy and had service onboard several naval vessels; as such, his in-service exposure to asbestosis is presumed. 4. The most persuasive medical opinion of record weighs in favor of a finding that the Veteran's death from respiratory failure due to ILD due to asbestosis was the result of in-service exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In this decision, the Board grants entitlement to service connection for the cause of the Veteran's death, which constitutes a complete grant of the appellant's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Criteria The appellant has contended that the Veteran's death was due to his in-service exposure to asbestos while in the U.S. Navy during World War II. Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A Veteran's death will be considered as having been due to a service-connected disability when such disability was the principal or contributory cause of his death, which occurred after December 31, 1956. See 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.312(a). 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 (2009). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the appropriate development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the issue on appeal under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). An asbestos-related disease can develop from brief exposure to asbestos. Id. VA's Adjudication Procedures Manual 21-1 ("M21-1") contains guidelines for the development of asbestos exposure cases. See generally M21-1, Part VI, 7.21 (Oct. 3, 1997). Part (a) of 7.21 in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). See M21-1, Part VI, 7.21(a) (Oct. 3, 1997). Part (b) of 7.21 pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. The latent period 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). See M21-1, Part VI, para. 7.21(b) (October 3, 1997) Part (d) of 7.21 provides that VA must determine: (1) whether military records demonstrate evidence of asbestos exposure in service; (2) whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and (3) determine the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. See M21-1, Part VI, para. 7.21(d) (Oct. 3, 1997). See also VAOPGCPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33,422 (2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). Analysis The Veteran died on April [redacted], 2005. The cause of death shown on the Certificate of Death was respiratory failure due to (or as a consequence) of ILD due to (or as a consequence) of asbestosis. Prior to his death, the Veteran was afforded a VA examination in March 2004 in which he was diagnosed with asbestosis. At the time of his death, however, service connection was not in effect for asbestosis. A January 2008 VHA opinion noted that the Veteran served in the Navy as a seaman first class and as a gunner's mate for 3 years on 2 World War II vessels that were fitted with asbestos. There was no documentation that the Veteran worked directly with or handled asbestos. The examiner opined that, "In my opinion asbestos would not be considered an occupational related material whereby the Veteran could have had prolonged or repeated exposure." He noted, however, that there was the possibility that the Veteran could have been called upon to clean up or repair pipes or structures containing asbestos, but this was unlikely and "certainly not a recurring one." The examiner's clinical impression was that the cause of the Veteran's fibrosis could in fact be asbestos related. Unfortunately, the VA examiner had no access to the hospital records at the time of the Veteran's death and could not state with any certainty what were the actual circumstances at the time of the Veteran's death. In a November 2009 medical opinion by Carl P. Hallenborg, M. D., FCCP, a Board certified pulmonologist, it was noted that there was documented exposure to asbestos fibers in service and the Veteran had mild pleural asbestosis and severe interstitial lung disease whose cause probably was due to the exposure of asbestosis. In Dr. Hallenborg's opinion, the asbestos exposure led to the Veteran's demise. In a July 2010 VHA opinion, the examiner noted that the Veteran's exact cause of death was respiratory failure due to ILD due to asbestosis. This examiner also noted the unavailability of the final hospitalization records and that a complete and thorough review of the records was needed to make an opinion. Based on the available evidence, he opined that it was less likely than not that the Veteran's death was caused by or as a result of asbestosis. He noted that the Veteran served as a gunner's mate in the Navy. He noted that in a chart attached to his medical opinion was a listing of Navy jobs and estimated asbestosis exposures. A gunner's mate was listed in the chart as having minimal exposure to asbestosis. This examiner opined that, because the exposure in this particular field was minimal, it made it less likely than not that the Veteran's asbestosis was acquired from active duty. The Board notes that there are three competent opinions of record which address the question of whether the cause of the Veteran's death is related to active service. The Board finds Dr. Hallenborg's opinion to be more probative than the January 2008 and April 2010 VHA medical opinions. First, Dr. Hallenborg reviewed the Veteran's records noting ILD consistent with asbestosis prior to the Veteran's death. He noted that the Veteran was not exposed to asbestos prior to service. The Veteran had been a farmhand and a driver prior to service entering the Navy at age 18 and served on board two ships. The Veteran was exposed to asbestos in his sleeping, eating, and working quarters. In the course of action, dust would be raised in the air. The Veteran had no acute symptoms of cough, shortness of breath or wheezing at that time. He also acknowledged a smoking history from age 18 to 33. The Veteran subsequently began having progressive shortness of breath 5 years prior to his death in 2005. Based on Dr. Hallenborg's analysis, he opined that there was documented exposure to asbestos fibers in the Navy which was unique and not repeated. In Dr. Hallenborg's opinion, the in-service asbestos exposure led to the Veteran's demise. While determining that it was unlikely that the Veteran's asbestos exposure in service was the cause of his diagnosed asbestosis, both the January 2008 and April 2010 VHA examiners noted that the Veteran could have been exposed at some level to asbestos in service. The April 2010 VHA examiner opined that the Veteran's exposure to asbestos was minimal. They in essence noted that the cause of the Veteran's fibrosis could in fact be asbestos related but could not state with any certainty what were the actual circumstances at the time of the Veteran's death. The VA examiners only speculated as to the Veteran's level of asbestos exposure. There was no question that World War II U.S. Navy ships had asbestos in almost all locations to some degree. All exposed pipes would be wrapped in asbestos insulation. When the gun on the ship would fire, asbestos fibers would come down from these pipes. Normally, this low level of asbestos exposure does not cause lung cancer. As noted in the M21-1, however, exposure to asbestos may be brief or indirect. See M21-1, Part VI, para. 7.21(b) (Oct. 3, 1997) Regardless of the VA examiners' speculations as to the Veteran's level of asbestos exposure, the Board concedes that he was exposed in service to asbestos. After evaluating the record, the Board concludes that the more probative evidence of record establishes that the Veteran's exposure to asbestos in service was a contributory cause of his asbestosis which was the underlying cause of his death. Consequently, the Board finds that probative evidence of record indicates an etiological relationship between the Veteran's in-service exposure to asbestos and his respiratory failure due to (or as a consequence) of ILD due to (or as a consequence) of asbestosis. Therefore, resolving reasonable doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs