Citation Nr: 1109502 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 09-39 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of Veteran's death. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran was on active duty in the US Navy from December 1960 to March 1983. He passed away in January 2008; at the time of his death, he was in receipt of VA compensation benefits. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran had over twenty-two years of active service in the US Navy. 2. During his service in the Navy, the Veteran served aboard the USS Little Rock (CLG-4), the USS Koelsch (DE 1049), the USS Gearing (DD 710), the USS Charles P. Cecil (DD 835), and the USS Dyess (DD 880). All five ships were known to have contained asbestos or asbestos-related products. 3. The Veteran died on January [redacted], 2008. The Certificate of Death listed the primary cause of death to be massive gastrointestinal hemorrhage from gastrointestinal malignancy due to disseminated intravascular coagulopathy. 4. During his lifetime, the Veteran was diagnosed as suffering from squamous cell carcinoma of the distal esophagus. 5. A VA doctor opined that the Veteran's carcinoma was not due to or the result of in-service asbestos exposure. 6. A private doctor opined that the Veteran's cause of death was the result of his previously diagnosed squamous cell carcinoma of the distal esophagus, and that such a carcinoma was caused by or the result of the Veteran's exposure to asbestos while on active duty. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, a disability incurred in or aggravated by service, or which may be presumed service connected, did proximately cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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. 2010); 38 C.F.R. § 3.159(b) (2010); 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 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). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with these issues given the favorable nature of the Board's decision with regard to the issue of service connection for the cause of the Veteran's death. The appellant contends that as a result of her husband's twenty-plus years in the US Navy, he was exposed to asbestos, which, in turn, resulted in the development of a carcinoma that her husband eventually died therefrom. The RO has denied her claim and she has appealed to the Board for review. As previously reported, the Veteran was on active duty in the US Navy for over twenty-two years. During that time period, he was stationed (or home-ported) at the Great Lakes Naval Training Station, the Newport Naval Base, the Philadelphia Naval Shipyard, the Mayport Naval Station, and the Boston Naval Shipyard. Moreover, he was assigned to the following ships: USS Little Rock (CLG-4), USS Seattle (AOE-3), USS Koelsch (DE 1049), USS Gearing (DD 710), USS Charles P. Cecil (DD 835), USS Concord (AFS-5), USS Dyess (DD 880), USS Puget Sound (AD 38), and the USS Sylvania (AFS-2). Of those nine ships, five of those ships have been reported as being ships which contained asbestos or asbestos products. Approximately twenty-four years after he retired from the Navy, he was found to have an esophageal mass. This occurred in January 2007. Further testing of the mass occurred and it was discovered that the mass was a moderately differentiated squamous cell carcinoma. After the diagnosis, the Veteran underwent radiation and chemotherapy. One year later, a near total gastrectomy was performed because of gastrointestinal bleeding. The tissue removed was consistent with chronic radiation-induced injury. In other words, the cancer treatment caused or resulted in further damage to the esophagus and surrounding tissues which, in turn, lead to gastric bleeding. Unfortunately, the surgery to correct the gastric bleeding was not successful and on January [redacted], 2008, the Veteran passed away. Per the Certificate of Death, the Veteran passed away as a result of massive gastrointestinal bleeding from gastrointestinal malignancy and disseminated intravascular malignancy. No other illnesses, diseases, or disabilities were listed or suggested. A full autopsy was not performed. At the time of his death, the Veteran was service-connected for mild nonproliferative diabetic retinopathy and cataracts associated with type II diabetes mellitus, hypertension, type II diabetes mellitus, and the residuals of a right inguinal herniorrhaphy. Private medical records indicate that at the time of his death, the Veteran suffered from asbestosis with pulmonary interstitial fibrosis and an increased number of asbestos bodies in the lung tissue. At the time of his death, the Veteran did have a claim before the VA involving increased ratings for two of four of his service-connected disabilities. To support her claim, the appellant proffered copies of the Veteran's private treatment records along with an opinion provided by a private physician/specialist. The record also reveals that, in conjunction with its duty to assist the claimant with her claim, the RO obtained a VA doctor's opinion concerning the appellant's assertions. A review of the VA doctor's opinion indicates that upon reviewing the evidence of record, the doctor concluded that the Veteran's gastrointestinal malignancy was not caused by or the result asbestos exposure. The examiner referenced the Merck Manual, 13th Edition, pages 626 and 829, which was published in 2001. The physician noted that the appellant's cancer could be associated with tobacco use or alcohol consumption. However, he further recognized that the cancer might also be caused by asbestosis. Nevertheless, as reported, the appellant supplied a private doctor's opinion, dated March 2009. A review of the opinion shows that the private examiner reviewed the appellant's medical records stemming from 1996 to 2007. Of particular note in this review is a note from November 2007. The reviewer indicated that the Veteran had a necrotic esophageal tumor that was bleeding and then cauterized. The diagnosis at that time was large bleeding esophageal mass, most likely recurrent squamous cell carcinoma with life-threatening gastrointestinal bleeding. Moreover, he also indicated that he had some knowledge of where the Veteran may have been exposed to asbestos while he was on active duty in the US Navy. Upon completion of the review of the various medical records, the reviewer provided the following opinion or comment: . . . [the Veteran] died of complications of squamous cell carcinoma of the esophagus on 1/15/08. . . . .... On the basis of a history of substantial occupational asbestos exposure beginning in 1960 . . . it is my opinion rendered to a reasonable medical probability that [the Veteran] had asbestosis and asbestos-related pleural disease as a result of his occupational exposure to asbestos. [The Veteran] also had squamous cell carcinoma of the distal esophagus. This cancer accounts for seven percent of GI cancers. . . . Squamous cell carcinoma is associated with alcohol and tobacco consumption, lye stricture, and other causes. Squamous cell carcinoma is also associated with asbestos exposure. The International Agency for Research on Cancer classifies asbestos as an occupational exposure causally related to human cancer (Group 1) of the gastrointestinal tract (Boffetta et al in Int J Occup Environ Health 1995; 1:1315). Dr. Seilikoff found approximate[ly] 2-4 times the mortality rates from gastrointestinal cancer in his studies on insulators and asbestos factory workers. More recent studies have shown additional associations between esophageal cancer and asbestos exposure. A recent case control study by Santianez (et al) Occup Environ Med, 2008 Nov; 65(11):774-81) found an odds ratio of 3.45 [to 1] for the risk of esophageal squamous cell carcinoma due to asbestos exposure. A study by Hein et al (Occup Environ Med, 2007 Sep; 64(9):616-25) of South Carolina asbestos textile workers showed a standardized mortality risk of 1.87 due to esophageal cancer. Excess risk for esophageal carcinoma was noted with asbestos in a case control study of workers in Canada by Parent et al (Occup Environ Med. 2000 May; 57(5):325-34). On the basis of more than 40 years of occupational asbestos exposure with a long latency period, and based on the above demonstration of an association between occupational exposure to asbestos and the development of esophageal cancer, it is my opinion rendered to a reasonable medical probability that [the Veteran's] long-term occupational exposure to asbestos was a significant factor in the development of his esophageal cancer which caused his death. There are no other medical opinions of record. The surviving spouse of a veteran who has died of a service- connected or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); Wray v. Brown, 7 Vet. App. 488 (1995). The death of the 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. 38 C.F.R. § 3.312(a) (2010). The appellant will be entitled to service connection for the cause of death if it is shown that the service-connected disabilities contributed substantially or materially to cause death; that they combined to cause death; or that they aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2010). However, service-connected disabilities of a static nature involving muscular or skeletal functions and not materially affecting other vital body functions will not be held to have contributed to death resulting primarily from some other cause. 38 C.F.R. § 3.312(c)(2) (2010). The standards and criteria for determining whether or not a disability from which a veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Additionally, in Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992), the United States Court of Appeals for Veterans Claims, hereinafter the Court, stated the following: Further, in cases where the primary cause of death is so "overwhelming" that death would have resulted regardless of the existence of a service-connected disability, a service-connected condition may be found to be a contributory cause of death where that condition has had a "material influence in accelerating death" because it "affected a vital organ and was of itself progressive or debilitating [in] nature". Service connection may be established for a current disability in several ways including on a direct basis. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2010). Direct service connection may be established for a current disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2010). Establishing direct service connection for a disability which has not been clearly shown in service requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and, (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d) (2010); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2010). The Court has held that when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). Moreover, service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has VA promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular was subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). Subsequently, VA has reorganized and revised this manual into its current electronic form M21-1MR. While the form has been revised, the information contained therein has remained the same. "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). With asbestos related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9)(h). VA must also ensure that proper development of the evidence is accomplished to determine whether or not there is pre-service and/or post-service asbestos exposure. Id. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9)(e). Some of the major occupations involving exposure to asbestos include 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, military equipment, etcetera. M21-1, Part IV, Subpart ii, Chapter 2, §C(9)(f). 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. A further review of the Veteran's claim folder reveals that when he applied for VA compensation benefits in 2003, he specifically noted that he had been exposed to asbestos from 1961 to 1980. VA Form 21-526, Veteran's Application for Compensation and/or Pension, Part B, Section II, Item 6a, received April 1, 2003. As previously reported, the Veteran served aboard at least five ships that are known to have been constructed using asbestos and asbestos-related products. See http://www.mesotheliomaweb.org/navyshipsasbestos.html. Based upon the statement made by the appellant many years prior to his actual diagnosis of a condition possibly related to asbestos exposure and the fact that the appellant more than likely served 10 out of 22 years onboard ships where asbestos was present, the Board concedes asbestos exposure. Additionally, the Board further recognizes the fact that an analysis of lung tissue slides has positively shown the presence of asbestos fibers in the lungs. Although the Veteran was given the diagnoses post-mortem, a review of 23 slides and 23 tissue blocks produced findings of asbestos bodies, grade III asbestosis, bilateral pleural plaques, and bilateral pleural fibrosis. The Board would further point out that, per M21-1, Part IV, ii.2.C.9(b), cancers of the gastrointestinal tract, such as was suffered by the Veteran, are recognized as possible asbestos-related diseases and disabilities. Yet, having found that the Veteran was exposed to asbestos while on active duty and that he was suffering from asbestos-related conditions, the question remains as to whether there is evidence that etiologically links the Veteran's death with said exposure. In this instance, there is both positive and negative medical opinion of record. There is no dispute that the Veteran's squamous cell carcinoma of the esophagus, and the treatment and residuals thereof, led to his death. The question that the Board must answer is whether the cancer was caused by or the result of the Veteran's exposure to asbestos while he was in service. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a Veteran's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the Veteran for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment. Certainly, the particular medical information contained in a claims file may have significance to the process of formulating a medically valid and well-reasoned opinion. The Court further held that a medical opinion that contains only data and conclusions is not entitled to any weight and a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes is derived. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. In this instance, there is a VA medical opinion that discounts the arguments made by the appellant. Contrary to that opinion is the opinion provided by the private physician. Both findings have been previously reported above. With respect to the VA doctor's opinion, he insinuated that the Veteran's cancer was more likely due to tobacco or alcohol use. Yet, while the opinion admitted that the Veteran's cancer could have been due to asbestos exposure, he merely concluded that this was not the case in the Veteran's case. This opinion differs extensively from the private examiner's opinion that concluded differently. In the private doctor's opinion, the examiner discussed the Veteran's long medical history, his exposure to asbestos during service, the treatment the Veteran received, and the physical cause of the Veteran's death. Moreover, the reviewer recognized that the Veteran's cancer may have been caused by tobacco or alcohol use, but he also discussed, in detail, why he believed that the cancer was asbestos-related. The private examiner was not equivocal. He was very specific and direct in the opinion he provided, and he provided up-to-date reference material to substantiate his assertions. The Board would further point to the opinion provided by the private doctor. The doctor was not equivocal, vague, or ambiguous with his assertions, and he discussed his reasoning as to why the opinion was not faulty and with merit. In other words, the Board believes that the private physician provided sound reasoning in his analysis of the situation. Although the doctor indicated that post-service exposure may also have been a factor in the development of asbestos-related disease, it was also indicated that the lengthy period of active service which also involved asbestos exposure contributed to the development of his asbestos-related disease. The non-VA related doctor reviewed in detail the pertinent medical records, discussed the salient facts, and provided complete rationale for all conclusions presented, as noted in the discussion above. The VA doctor did not do this. As such, the Board attaches the most significant probative value to the private doctor's opinion as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board finds that with the resolution of reasonable doubt in the appellant's favor, it is as likely as not that the Veteran's esophageal cancer, which essentially caused his death, was the result or caused by the Veteran's in-service exposure to asbestos. As such, service connection for the cause of the Veteran's death is warranted. 38 C.F.R. §§ 3.102, 3.312 (2010). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs