Citation Nr: 1126413 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 06-20 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for the cause of the Veteran's death, claimed as due to in-service exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from November 1946 to January 1950, and from June 1951 to October 1952. He died in late 2004. 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 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which denied the appellant's claim seeking entitlement to service connection for the cause of the Veteran's death. This case was previously before the Board in November 2009 when it was remanded for further development. The case has since returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran died in late 2004, and the immediate cause of death listed on his death certificate is cardiopulmonary arrest, due to or as a consequence of recurrent pulmonary embolism, bronchogenic cancer with widespread metastasis in both lungs, due to or as a consequence of brain metastasis. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. Resolving any doubt in the Veteran's favor, he was exposed to asbestos in service. 4. A diagnosis of asbestosis is not confirmed by a computed tomography (CT) of the lungs, or lung biopsy. 5. A respiratory disability was not present during the Veteran's active service, and lung cancer may not be presumed to have been incurred therein; and the preponderance of the evidence is against a finding that the Veteran's cause of death is related to his service, to include exposure to asbestos. CONCLUSION OF LAW A disability incurred or aggravated in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service, did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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, 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. 3 8 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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. Id. at 486. In the context of a claim for dependency and indemnity compensation (DIC) benefits, § 5103(a) notice 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the Veteran was not service-connected for any disabilities at the time of his death. As such, the requirements as set forth in Hupp are not applicable here. An explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected was sent to the appellant initially sent to the appellant in February 2005, prior to the initial unfavorable decision here on appeal. Further VCAA notice was sent to the appellant in December 2009, January 2010, February 2010, March 2010, and June 2010, after which the case was readjudicated by way of a February 2011 Supplemental Statement of the Case. Therefore, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist an appellant in the development of the claim. This duty includes assisting her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, the Board finds that all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The record contains the Veteran's service treatment and personnel records, VA treatment records, and private treatment records. Further, the appellant and her representative have submitted statements and argument in support of the claim. Thus, VA has satisfied this duty as well. Neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist. Background The Veteran's service treatment and personnel records associated with the claims file make no reference to asbestos exposure, and are negative for any diagnosis of or treatment for a respiratory disability, to include lung cancer. VA treatment notes beginning in 2003 show complaints of shortness of breath. Subsequent notes dated in 2003 and 2004 show diagnoses of chronic obstructive pulmonary disorder (COPD). In September 2004, the Veteran was admitted to the VA Medical Center due to a history of syncopal episodes. During this admission, chest x-rays showed evidence of multiple bilateral lung nodules, and pleural plaques "Question asbestos exposure." A CT scan of the Veteran's chest revealed evidence numerous lymph nodes, numerous calcified pleural plaques in both lungs, and pulmonary interstitial nodules seen scattered throughout both lungs. Primary differential considerations included silicosis, tuberculosis, metastatic disease, and Langerhans' cell histiocytosis. Impression was diffuse interstitial nodules. According to a September 2004 VA pulmonary consultation note, the physician stated that he doubted that the Veteran had asbestosis. It was noted that plaques are not predictive of whether one is going to develop asbestosis. In October 2004, a biopsy of the lungs confirmed lung cancer. The Veteran was discharged with final diagnoses of metastatic adenocarcinoma of the lung with focal broncho-alveolar features with lung and brain metastases, and hypertension. In November 2004, the Veteran was admitted to Roundup Memorial due to complaints of increased shortness of breath, orthopnea, and marked fluid overload with bilateral lower limb edema. He was treated and discharged three days later. According to the discharge summary report provided by A.M.M., M.D., the Veteran was diagnosed with Stage IV bronchogenic carcinoma, probably a result of chronic smoking and asbestos exposure, which is widespread and inoperable with metastases to the brain; COPD; hypertension; normochromic normocytic anemia, and marked fluid overload with no evidence of relapse of his membranous nephropathy. In November 2004, the Veteran filed a service connection claim for lung disability secondary to in-service exposure to asbestos. As a result, the RO requested an etiology opinion. In this regard, a VA family nurse practitioner, in the same month, indicated that the Veteran's case had been discussed with a VA pathologist and that the pathologist indicated that the Veteran's lung biopsy report was not specific for mesothelioma and opined that it was not likely that the Veteran's lung cancer was secondary to his service-connected duties. Thereafter, on December 17, 2004, the Veteran presented to Roundup Memorial with a several hour history of paroxysmal shortness of breath. During the hospital stay, he developed a fever and remained afebrile for 30 hours. He was discharged on December 20, 2004, with diagnoses of febrile illness of undetermined etiology; terminal metastatic lung cancer; seizure disorder secondary to brain metastases; normocytic anemia; and a history of numerous other conditions. In late December 2004, the Veteran returned to Roundup Memorial with a sudden onset of severe left-sided chest pain and was in marked respiratory distress. He was treated, but unfortunately expired days later. The causes of death listed on the final summary report were cardiopulmonary arrest; pulmonary emboli, which was suspected clinically; widespread metastases of the bronchogenic carcinoma to both lungs and to the brain; and seizure activity resulting from the brain metastases. It also reflects that tobacco use contributed to his death. In a March 2005 letter, Dr. A.M.M. indicated that findings from numerous x-rays of the Veteran's lungs indicate that he had characteristics of exposure to asbestos. He referred to the September 2004 chest x-ray report and stated that "[w]e don't have any biopsy that definitely identifies asbestos particles in the lung tissue, but I think this is the best available evidence supporting the fact that he has, indeed, been exposed to asbestos." Thereafter, the RO requested an addendum clarifying the etiology of the Veteran's fatal lung cancer. According to an April 2005 VA Progress Note, it was noted that the examiner's prior opinion had not changed even after a review of the relevant pathology that led to the Veteran's death. Service Connection for the Cause of the Veteran's Death When a Veteran dies from a service-connected disability, his surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability or disabilities incurred in or aggravated by service either caused or contributed substantially or materially to cause the Veteran's death. 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. For a service-connected disability to constitute a contributory cause, 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 (2010); Lathan v. Brown, 7 Vet. App. 359 (1995). Accordingly, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Further, service connection for certain diseases, such as a malignant tumor, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2010). In order to prevail on the issue of service connection in the context of this claim, once the death of the Veteran has been established, there must be medical evidence, or in certain circumstances, competent lay evidence, of in-service occurrence or aggravation of a disease or injury leading to death within the regulatory scheme; and competent medical evidence of a nexus between an in-service injury or disease and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). "Competent lay evidence" means "any evidence not requiring that the proponent have specialized education, training, or experience." Lay evidence is competent "if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation); see Layno v. Brown, 6 Vet. App. 465, 470 (1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (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, 4 Vet. App. at 429. 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 VI, 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 VI, 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 VI, 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, etc. M21-1, Part VI, 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. In addition, 38 C.F.R. § 3.300(b)(1) (2010) states that a disability or death can be service-connected on the basis that it resulted from an injury or disease attributable to the Veteran's use of tobacco products during service if the disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. For the purposes of this section, "otherwise shown" means that the disability or death can be service-connected on some basis other than the Veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As indicated, the record reflects that the Veteran died in late 2004. The immediate cause of death, as listed on his certificate of death, is cardiopulmonary arrest, due to or as a consequence of, recurrent pulmonary embolism, bronchogenic cancer with wide spread metastasis in both lungs, due to or as a consequence of, brain metastasis. It was also noted that tobacco use contributed to the Veteran's death. At the time of his death, the Veteran had no adjudicated service-connected disabilities. In this case, the appellant seeks entitlement to service connection for the cause of the Veteran's death. Her primary assertion is that the Veteran was exposed to asbestos during his service in the Navy and that such exposure substantially contributed to his death. The Veteran's service treatment and personnel records make no reference of the Veteran having been exposed to asbestos during service. Nevertheless, these records do confirm that he attended electronic maintenance school and Engineman School while serving in the Navy. The Board further notes that, in the March 2005 letter, Dr. A.M.M. stated that findings from numerous x-rays of the Veteran's lungs support the fact that he was exposed to asbestos. Thus, in light of the medical evidence and the Veteran's naval service and duties, and resolving any doubt in the Veteran's favor, the Board concedes asbestos exposure during service. Despite the conceded exposure to asbestos, however, the Veteran's service treatment records are negative for any diagnosis of or treatment for a lung disability. In fact, respiratory complaints, specifically shortness of breath, are not shown in the record until early 2003, approximately 51 years after his discharge from service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2003). In this case, the lapse of decades between service and the first evidence of respiratory complaints is evidence against the claim. The Board acknowledges the appellant's statement that the Veteran's death is related to asbestos exposure during service. And as indicated, the Veteran, prior to his death, had filed a service connection claim for a lung disability, secondary to asbestos exposure. They, as laypersons, are competent to report on any observable respiratory symptoms. However, without the requisite medical training, they are not competent to link the Veteran's fatal lung cancer to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As noted, the claims file contains a November 2004 VA opinion and April 2005 addendum which conclude that the Veteran's fatal lung cancer was less likely than not related to service, to include asbestos exposure, and more likely than not caused by his long history of cigarette smoking. In arriving at such opinion, the pathologist emphasized that exposure to asbestos does not automatically constitute a diagnosis of asbestosis. It was noted that both the CT of the thorax and the lung pathology report showed no evidence of the Veteran ever having asbestosis. The pathologist acknowledged that there was a slight, less than five percent possibility, that the Veteran's lung cancer could be partly related to asbestos exposure, however she noted that it could also be related to exposure to approximately 24 other chemicals. The pathologist highlighted the Veteran's history of smoking two to three packs of cigarettes a day for 40 years and noted that in the 1950's and 1960's, very few cigarettes had filters and there was no attempt to make them safer. The pathologist also referred to medical literature showing that cigarette smoking is estimated to be responsible for approximately 87 percent of cases of lung cancer, including 90 percent of cases in men. The Board finds the November 2004 VA opinion and April 2005 addendum to be factually accurate, fully articulated, and contain sound reasoning; therefore it is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the statement provided by Dr. A.M.M. in the November 2004 private discharge summary to the effect that the Veteran was diagnosed with Stage IV bronchogenic carcinoma, "probably a result of chronic smoking and asbestos exposure." This statement, however, suggests only a possibility that the Veteran's lung cancer was related to asbestos exposure, and does not counter the VA pathologist's opinion that the Veteran's lung cancer was less likely than not related to service, to include asbestos exposure. In light of the above, the Board finds that a clear preponderance of the evidence is against a finding of a nexus between the Veteran's lung cancer and his service. In short, although exposure to asbestos is conceded and asbestosis was included in the differential diagnoses, the medical evidence does not show that the Veteran was ever diagnosed with asbestosis. Rather, the preponderance of the evidence shows that the Veteran's lung cancer was more likely than not caused by his 40 year history of chronic cigarette smoking. Accordingly, the Board finds that the Veteran's death was not caused by, or substantially or materially contributed to by, a disability or disease incurred in or aggravated by service. The Board sympathizes with the appellant; however, as the preponderance of the evidence is against her claim, the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). Therefore, it must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs