Citation Nr: 1110666 Decision Date: 03/17/11 Archive Date: 03/30/11 DOCKET NO. 98-20 159 ) 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 the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1967 to February 1987. The DD Forms 214 show that he served for more than three years in Vietnam during periods of service from February 1967 to April 1974. The Veteran served in combat and his decorations included the Presidential Unit Citation, the Combat Action Ribbon and the Combat Air Crew Insignia with three combat stars. He died in May 1997 and the appellant is his surviving spouse. When this matter was initially before the Board in October 2007, the Board denied the appellant's claim of service connection for the cause of the Veteran's death. The appellant appealed the Board's October 2007 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2009 order, granted the parties' joint motion for remand, vacating the Board's October 2007 decision and remanding the case for compliance with the terms of the joint motion. Previously, the procedural history began with the appellant's appeal to the Board from a May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board thereafter denied the appellant's claim in a November 1999 decision that was vacated by the Court in November 2000. The Board remanded this claim in August 2001 and again denied service connection for the cause of the Veteran's death in December 2004; in April 2006, the Court vacated the Board's decision, and in January 2007, the Board remanded this case for further development. To comply with the terms of the Court's July 2009 order, in April 2010 and December 2010, the Board requested medical expert opinions from the Veteran's Health Administration (VHA), which in response provided such opinions in September 2010 and February 2011, respectively. FINDING OF FACT The objective medical evidence is in relative equipoise as to whether the cause of the Veteran's death is related to service. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the cause of the Veteran's death was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for the cause of the Veteran's death, which represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. The appellant asserts entitlement to service connection for the cause of the Veteran's death on the basis that the cause of his death was related to or had its onset in service. The appellant offers three theories in support of her service connection claim. She maintains that the Veteran's death was related to: (1) his in-service asbestosis exposure; (2) his in-service herbicide exposure; and/or (3) his in-service gastrointestinal complaints. When any Veteran dies from a service-connected disability, the Veteran's surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C.A. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that disability that is causally related to service either caused, or contributed substantially or materially to the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Although there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including malignant tumor or peptic ulcers, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Regarding asbestos-related diseases, there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the Court and General Counsel provide guidance in adjudicating these claims. 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the appellant's claim for service connection for the cause of the Veteran's death, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the claimed disease (cause of the Veteran's death), keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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, Part VI, par. 7.21(a)(1) & (2). The M21-1 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, Part VI, par. 7.21(b)(1). M21-1 does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); see also 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); Ashford v. Brown, 10 Vet. App. 120 (1997). Thus, in claims of service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to a disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In VAOPGCPREC 04-2000 (April 13, 2000), the General Counsel the following: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. At the time of the Veteran's death, service connection was in effect for postoperative residuals of fracture of the distal femur with traumatic arthritis of the left knee, which was evaluated as 10 percent disabling; and left ear hearing loss, which was evaluated as zero percent disabling. The May 1997 official certificate of death shows that the Veteran died in May 1997. The certificate of death shows that the immediate cause of the Veteran's death was determined to be cardio-pulmonary arrest with an antecedent cause of septicemia. The certificate listed the underlying cause as generalized peritonitis, which was secondary to a ruptured ascending colon, which in turn, was secondary to the complete obstruction by a tumor (carcinoma) at the hepatic flexure of the colon with metastasis to the liver, duodenum, pancreas. An associated May 1997 report of surgical pathology contains a diagnosis of resection, ascending colon and excision of mass, hepatic flexure; poorly differentiated carcinoma, metastatic; pericolic lymph nodes (10/10) pericolic soft tissues, and omentum positive for malignant cell. The report contains remarks to consider the liver as the primary site of malignancy. Service treatment records show no indications of any of the above discussed conditions being present during the Veteran's period of active service. These records do show that the Veteran completed an occupational health/asbestos medical surveillance program questionnaire in June 1983, which shows that he reported having been exposed to asbestos in his work; in having been deployed for more than 30 days on board ship; by working in automotive clutch or brake shoe repair; and by working in removal of asbestos insulation. He also reported at that time that he had been deployed on ships in excess of 30 days-from January 1968 to April 1968, and from July 1981 to December 1981. He was also involved in maintenance of auto brake/clutch repair, and in repair of aircraft brakes. He also reported that he had involvement with removal of asbestos insulation onboard ships between July 1981 and December 1981. The Veteran completed an asbestos questionnaire in April 1984, reporting that during his military career he had been exposed to asbestos dust during rip out operations and/or with working regularly with asbestos or asbestos products. He did not know if he had any such exposure prior to his military career. The service personnel records show that during much of his service, the Veteran's military occupational specialties consisted of auto mechanic, truck mechanic, aviation support equipment mechanic. A September 2006 private report contains an opinion as to whether the Veteran's exposure to asbestos during his service caused or contributed to his death. Based on review of various records provided, the physician opined that it was not clear to him whether the Veteran's asbestos exposure during service was at least as likely as not to have caused or contributed to his death. In providing the opinion the physician did note that the Veteran had been exposed to asbestos and placed in the Asbestos Medical Surveillance Program in June 1983. Notably, the physician listed some published material indicating some extent of etiological relationship in general between asbestos exposure and the development of gastrointestinal tract cancer. The physician included comment that one study showed that the risk of colon cancer was greater in people who smoked and had radiographic evidence of pulmonary asbestosis. This is notable in that it reflects some evidence suggesting that the risk of colon cancer was greater in people who had been exposed to asbestos. The report of a June 2007 VA examination shows that the examiner reviewed the claims file and on that basis opined that it was not likely that the claimed asbestos exposure caused, contributed to or in any way accelerated the Veteran's death-causing conditions. He further opined that there was no documented gastrointestinal disorder treated during service that caused, contributed to, or in any way accelerated the Veteran's death-causing conditions; and that no malignancy could be attributed to herbicide exposure. In a September 2010 report of a VHA opinion, the examiner reviewed the Veteran's claims file as to relevant medical records and opinions to address the likelihood of a link between the Veteran's asbestos exposure and certain cancers. The examiner noted that several investigators had reported the presence of large quantities of asbestos fibers and/or asbestos bodies in histological samples from digestive cancer sites. He noted that these observations supported the hypothesis of the potential responsibility of asbestos in digestive cancer; however, he opined that they were insufficient to establish a firm causal link. The VHA specialist acknowledged, however, that the Occupational Safety and Health Administration (OSHA 1994) and the World Health Organization International Agency for Research on Cancer (WHO 1989), had determined that asbestos caused gastrointestinal cancer. The examiner concluded that at the present time the data about the relationship between asbestos exposure and gastrointestinal cancer was very contradictory. In this regard, the examiner opined as to the Veteran's case, that there was a possibility of a significant hereditary predisposition due to the fact that this was a right-sided colon cancer in a relatively young subject. In a February 2011 addendum, the VHA specialist opined that there was "no probability" that the Veteran's death was related to his in-service asbestos exposure, but reiterated that both OSHA and the WHO had determined that there was an etiological relationship between exposure to asbestos and the subsequent development of gastrointestinal cancers. In light of the September 2010 and February 2011 opinions offered by the VHA specialist, and resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted because it is at least as likely as not that the Veteran's death was related to his in-service asbestos exposure. Finally, because the Board finds that service connection for the cause of the Veteran's death is warranted based on his in-service asbestos exposure, an analysis of whether the service connection is warranted based on his presumed exposure to herbicides while serving in the Republic of Vietnam, or to his in-service gastrointestinal complaints, is unnecessary. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs