Citation Nr: 1132743 Decision Date: 09/06/11 Archive Date: 09/12/11 DOCKET NO. 09-22 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1942 to November 1945. The appellant is his widow. This matter is before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the May 2008 rating decision, the RO determined that new and material evidence had not been submitted to warrant a reopening of the appellant's original claim for service connection for cause of the Veteran's death filed in August 1979. See 38 C.F.R. § 3.156. That claim was denied in an unappealed and final decision dated in November 1979. See 38 C.F.R. § 20.200. In June 2010, however, the Board found that new and material evidence had been submitted. The Board therefore reopened the claim, and sought additional medical inquiry into the appellant's assertion. In July 2011, the Board received a medical opinion from an independent medical expert (IME). The issue is now ready for review. FINDINGS OF FACT 1. The Veteran died in February 1973. 2. The immediate cause of the Veteran's death was mesothelioma. 3. No contributing cause of death was listed on the death certificate. 4. At the time of his death, the Veteran was not service connected for any disorders. 5. The evidence of record does not preponderate against the appellant's claim that the lung disorder that caused the Veteran's death related to his service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 At the outset, the Board notes that while the VA may not be in complete compliance with every aspect of the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002) (VCAA) with respect to the appellant's claim, the Board has determined that the evidence supports a grant of the benefits sought. Consequently, any lack of notice and/or development under the VCAA cannot be considered prejudicial to the appellant, and remand for such notice and/development would be an inefficient use of VA time and resources. II. The Merits to the Claim for Service Connection for Cause of Death The appellant claims that the Veteran's service in the navy exposed him to asbestos which ultimately caused a lung disorder that resulted in his death in February 1973. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (a)(2010). For a service-connected disability to constitute the principal (primary) cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to constitute a contributory cause of death, it must contribute substantially or materially to death, combine to cause death, and aid or lend assistance to the production of death. 38 C.F.R. § 3.312(c). There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases, and the Secretary of VA has not promulgated any specific regulations. However, 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 VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M 21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M 21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people were employed in shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come in for medical attention because the latency period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this matter, the evidence does not preponderate against the assertion that the Veteran was exposed to asbestos during service, that he died of a disease that is commonly associated with asbestos exposure, and that the disease that resulted in death likely related to the in-service exposure to asbestos. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). First, the evidence of record indicates that while in the U.S. Navy the Veteran served aboard ships that contained asbestos. The Veteran's service personnel records show that the Veteran was stationed aboard the USS Indiana, the USS Rocky Mount, the USS Campus and the USS Auburn during his service. These records show that his primary occupational specialty was that of radio technician first class. In an April 2010 brief, the appellant's representative asserted that the Veteran's specialty as a radio technician confined him to close quarters. This assertion was confirmed by photographs submitted into evidence. Moreover, the record contains newspaper articles and research concerning the dangers of asbestos and the fact the Navy's older ships utilized asbestos insulation. Certain of these articles detail the relationship between asbestos and cancer. Certain others discuss possible locations of asbestos exposure, including insulation, toasters, paint, tiles, furniture, bunk-room blankets and electrical equipment. In sum, the evidence of record does not preponderate against the appellant's assertion that the Veteran was exposed to asbestos during his naval service. 38 C.F.R. § 3.102. Second, the Veteran's death certificate clearly indicates that the Veteran died in February 1973 of mesothelioma, a disorder commonly associated with asbestos exposure. See VAOPGCPREC 4-2000. And third, the July 2011 IME opinion of record is in support of the appellant's claim. The examiner indicated a review of the claims file. And the examiner supported his opinion with clinical data and a rationale. The examiner stated that a tumor caused by asbestos typically has a latency of around 30 years. The examiner indicated that the Veteran's diagnosis of mesothelioma 30 years following possible exposure to asbestos "would be consistent with exposure to asbestos during the time of his military service." The examiner indicated that "all sailors" were at risk on ships that were active during the Veteran's service. The examiner recognized that post-service employment with AT&T may have led to asbestos exposure and mesothelioma. But the examiner stated that no evidence of such exposure was in the claims file. As such, the examiner concluded that "it is more likely than not that the Veteran's mesothelioma is related to asbestos exposure during" the Veteran's active military service. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In sum, the Veteran was likely exposed to asbestos during service, he died of a disease commonly associated with asbestos exposure, and a medical expert found the likely exposure likely related to the cause of death. The evidence of record does not preponderate against the appellant's claim therefore. See Alemany, supra. As the preponderance of the evidence is not against the appellant's claim, service connection for cause of the Veteran's death must be granted. 38 U.S.C.A. § 5107(b). See also Gilbert, supra. ORDER Entitlement to service connection for cause of the Veteran's death is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs