Citation Nr: 1146401 Decision Date: 12/20/11 Archive Date: 12/29/11 DOCKET NO. 10-38 694 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to August 1971. He died in December 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO, in pertinent part, denied service connection for the cause of the Veteran's death. In January 2011, the appellant testified during a Board hearing before the undersigned at the RO; a transcript of that hearing is of record. In connection with the hearing, the appellant submitted additional evidence, along with a signed waiver of RO consideration of the evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. The Veteran's immediate cause of death, as listed on his December 2008 death certificate, was acute respiratory distress syndrome; bronchiolitis obliterans with organizing pneumonia was listed as an underlying cause. 2. A January 2009 amendment to the death certificate, prepared by the same physician who prepared the original death certificate, lists the Veteran's immediate cause of death as pulmonary fibrosis, with acute respiratory distress and pneumonia listed as underlying causes. 3. At the time of his death, the Veteran was not service-connected for any disabilities. 4. During his almost 20 years of service in the U.S. Navy, the Veteran was exposed to asbestos. 5. The Veteran's cause of death, pulmonary fibrosis, is related to his in-service asbestos exposure. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, service connection for the cause of the Veteran's death is established. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The United States Court of Appeals for Veterans Claims (Court), in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. Given the favorable disposition of the claim on appeal, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Factual Background and Analysis The appellant alleges that the cause of the Veteran's death is related to his exposure to asbestos during his almost 20 years of service. The Veteran's death certificate, prepared by Dr. M.F. in December 2008, reflects that the Veteran's immediate cause of death was acute respiratory distress syndrome, with an onset days before death. The physician also listed bronchiolitis obliterans with organizing pneumonia as an underlying cause of death, with an onset weeks before death. Dr. M.F. indicated that tobacco use probably contributed to the Veteran's death. Two weeks later, in January 2009, Dr. M.F. prepared an affidavit of medical amendment to the Veteran's death certificate. In this affidavit, Dr. M.F. indicated that the Veteran's immediate cause of death was pulmonary fibrosis. Acute respiratory distress and pneumonia were listed as underlying causes. In this affidavit, Dr. M.F. indicated that tobacco use did not contribute to the Veteran's death. The physician stated that he was preparing the amendment as, in the original death certificate, he had incorrectly marked the box indicating that tobacco probably contributed to the Veteran's death, and as he was amending the cause of death. Service connection may be established for disability resulting from personal injury 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 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may be granted for any 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(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for the cause of a veteran's death requires evidence that a service connected disability was a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service connected disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1). The Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. 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 VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29 (July 20, 2009). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestos-related disease 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). The guidelines specify that asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005). The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. Id. 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, and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. With these claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service and develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. Id. The pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules, however, they must be considered by the Board in adjudicating asbestos-related claims. See VAOPGCPREC 4-2000. The Board points out that the Manual provisions do not create a presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. As an initial matter, the Veteran's service personnel records reflect that he served as a radarman on multiple Naval ships during his almost 20 years of service, including the U.S.S. Wood, U.S.S. Hawkins, U.S.S. Casa Grande, U.S.S. Fort Mandan, U.S.S. Hull, U.S.S. Jouett, U.S.S. Waller, and U.S.S. Gurke. The appellant has submitted several internet articles indicating that asbestos was used on certain Navy vessels, during the period of the Veteran's service. The ships specifically mentioned in these documents include each of those listed in the aforementioned paragraph. Additionally, during the January 2011 hearing, the appellant testified that the Veteran, whom she married in 1966, had told her that the walls of the destroyers on which he was serving were very thin, and, sometimes, when someone touched a wall too hard, it would open up and insulation would fly around. She also noted that the Veteran described pipes in the area where he slept, and stated that sometimes asbestos came off the pipes. The appellant added that the Veteran had described working in a warehouse which was filled with dust in either the Philadelphia shipyards or somewhere in the Boston area. She noted that she could not remember where, and that this work had been before she met the Veteran. The Board observes that the Veteran's service treatment records reflect that he received treatment at the U.S. Naval Shipyard dispensary in Philadelphia in March 1959. The Board is cognizant that a May 2002 VA memorandum to PIES coordinators and Military Records Specialists includes an attached chart showing the probability of asbestos exposure for various Naval Ratings. This chart indicates that there was a minimal chance that a radarman would have been exposed to asbestos. Nevertheless, despite this chart pertaining to the likelihood of asbestos exposure, in general, the Board finds that the evidence presented as regards the likelihood of in-service asbestos exposure in the case of this particular Veteran tends to support a finding that he was, in fact, exposed to asbestos during service. Resolving all reasonable doubt in the appellant's favor, the Board finds that in-service asbestos exposure was consistent with the circumstances of the Veteran's service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.102. The next question to be addressed is whether such exposure could have resulted in the Veteran's fatal pulmonary fibrosis. Private treatment records dated from December 2005 to December 2008 reflect that, the Veteran was afforded a chest X-ray in December 2005 because of a cough. No acute cardiac or pulmonary abnormality was seen. A May 2007 chest X-ray revealed prominent interstitial markings which might represent atelectasis, pneumonia, or pulmonary fibrosis. In December 2008, the Veteran presented at St. Petersburg General Hospital with shortness of breath. The discharge summary from that hospitalization reflects that the Veteran was placed on a ventilator and passed away in the hospital. The discharge summary notes that, after multiple attempts at lavage and bronchoscopy, the Veteran was found to have hemorrhagic alveolitis causing his respiratory failure. The other diagnoses included pneumonia, acidosis, protein-calorie malnutrition, iatrogenic pneumothorax, ileus, and subcutaneous emphysema. A pathology report from the Veteran's terminal hospitalization reflects that a wedge resection of the right lower lobe of the lung revealed benign peripheral lung tissue with severe emphysema, intra-alveolar hemorrhage, and non-specific reactive interstitial fibrosis. A CT scan of the chest, two days before the Veteran's death, revealed extensive subcutaneous emphysema and extensive pulmonary infiltrates and air space opacities. A chest X-ray the day before his death revealed increasing right pneumothorax to approximately 40 to 50 percent, increasing bilateral subcutaneous air, and persistent diffuse bilateral pulmonary infiltrates. In correspondence dated in April 2009, Dr. M.F. wrote that the Veteran had been a patient at his practice, and that his cause of death was pneumonia, intra-alveolar hemorrhage, and pulmonary fibrosis, although he opined that his chance of overcoming his illness was greatly reduced by his pulmonary fibrosis. Dr. M.F. opined that the Veteran's pulmonary fibrosis was caused by his in-service asbestos exposure. In rendering this opinion, Dr. M.F. noted that the majority of the Veteran's 20 years in the Navy had been spent serving on ships and, as it was well-known that almost no portion of a U.S. Navy ship was asbestos free between the 1930s and mid 1970s, it was easy to ascertain that the Veteran was exposed to asbestos while onboard these ships, which ultimately caused his pulmonary fibrosis. In a January 2010 letter, another physician, Dr. H.C., apparently a specialist in pulmonary diseases, indicated that he had cared for the Veteran before his death in December 2008. Dr. H.C. wrote that the Veteran died of pneumonia, intra-alveolar hemorrhage, and pulmonary fibrosis. He opined that the Veteran had an underlying pulmonary fibrosis, which was caused by his asbestos exposure during military service. The physician noted that the Veteran had 20 years of service in the U.S. Navy and that, during most of this time, he was serving on ships where he was exposed to asbestos. The physician reiterated that the Veteran's asbestos exposure eventually led to significant fibrosis, which contributed to his untimely demise. In November 2010, both Dr. M.F. and Dr. H.C. again prepared letters regarding the cause of the Veteran's death. Dr. M.F. reiterated the opinion previously expressed in his April 2009 letter. Dr. H.C. stated that, while talking to the Veteran prior to his death, it became clear that he was exposed to asbestos while serving in the U.S. Navy. Dr. H.C. opined that the Veteran's in-service asbestos exposure eventually led to pulmonary fibrosis. He added that a chest X-ray and CT scan of the chest revealed significant interstitial fibrosis with honeycombing and a pleural thickening. He added that a lung biopsy revealed nonspecific creative interstitial fibrosis. In light of the Veteran's history of asbestos exposure and X-ray evidence of a pleural thickening and interstitial fibrosis, Dr. H.C. opined that it was more likely than not that the Veteran had asbestos related pulmonary fibrosis. The physician went on to note that the Veteran developed adult respiratory distress syndrome which, with the background of pulmonary fibrosis, caused his demise. Notably, the only medical opinions regarding the etiology of the Veteran's cause of death support the claim for service connection. The foregoing medical opinions from Dr. M.F. and Dr. H.C. are persuasive that the pulmonary fibrosis which caused the Veteran's death was related to his in-service asbestos exposure. The Board finds these opinions to be probative of the nexus question. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Significantly, there is no contrary medical evidence of record reflecting a cause for the Veteran's cause of death, pulmonary fibrosis, other than in-service asbestos exposure. Additionally, there is no indication that the Veteran was exposed to asbestos other than during service. In this regard, the Veteran's service treatment records reveal that, in his November 1951 Report of Medical History at enlistment, the Veteran, age 19 at the time, reported that, while he had had three jobs in the past three years, he had no usual occupation. During the January 2011 hearing, the appellant testified that the Veteran worked as a restaurant manager following separation from service. She stated that he did not come into contact with asbestos in that line of work, as he was in an office where he took care of book work. She added that his post-service recreational activities consisted of fantasy sports and sailing remote-controlled sailboats. As such, she stated that he had no potential for exposure to asbestos in his civilian occupation or hobbies. As a final matter, the Board has considered the fact that, in the original death certificate, Dr. M.F. reported that tobacco use probably contributed to the Veteran's death. The Board notes that the law precludes service connection for disease or disability resulting from the use of tobacco products for all claims filed after June 9, 1998. See 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. Nevertheless, in his January 2009 amendment, Dr. M.F. indicated that he had incorrectly filled out the December 2008 death certificate as regards tobacco use, and clarified that tobacco use did not contribute to the Veteran's death. Importantly, during the January 2011 hearing, the appellant testified that the Veteran never smoked, and a December 2008 private treatment record reflects that the Veteran was a nonsmoker. There is simply no indication that tobacco use contributed to the Veteran's death. Indeed, the only probative evidence of record regarding etiology of the pulmonary fibrosis which resulted in the Veteran's death indicates that this condition was caused by his in-service asbestos exposure. Based on the foregoing, the Board finds that the Veteran's pulmonary fibrosis was related to his in-service asbestos exposure. Consequently, affording the appellant the benefit of the doubt, service connection for the Veteran's cause of death is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs