Citation Nr: 1201079 Decision Date: 01/11/12 Archive Date: 01/20/12 DOCKET NO. 07-09 872 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to dependency and indemnity compensation based upon service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from April 1959 to October 1970, when he was discharged on account of physical disability. He died in November 2005. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 RO decision. It was previously before the Board in July 2010, when it was remanded for further evidentiary and procedural development. Although such development was not fully accomplished, the Board has determined that the evidence of record is sufficient for us to proceed with review of the appeal without further delay. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during his naval service. 2. He died in November 2005 of mesothelioma, a cancer which is medically linked to asbestos exposure. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that her husband's death from mesothelioma was caused by exposure to asbestos during his naval career. In light of the disposition reached herein, an exhaustive analysis of the VA's duties to notify and assist the appellant in the development of her claim is not necessary. Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause of death. 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, adjudicators 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 case, the Veteran's service personnel records confirm that he served aboard the USS Beale, the USS Cony, and the USS Tidewater for the bulk of his naval career, from November 1960 to June 1969. His seaman's rate was that of signal man 1 or 2 (SM1 or SM2) on all three ships. He served on the USS Tidewater from March 1965 to June 1969. The transcript of a deposition made by the Veteran's brother, who served with him on the USS Tidewater, provides further information about the USS Tidewater and the asbestos exposure of those who served aboard that particular ship. According to the deposition, the Tidewater was a repair ship outfitted with various workshops to repair components from other ships, including pumps, valves, generators, various motors, and turbines. These parts in need of repair usually arrived in a state of dishevelment, with loose parts, including pipe, and with the insulation and the pipe lagging broken up, and the asbestos and other fibers loose and exposed. The Veteran's brother explained that although the Veteran's seaman rate was that of signalman, he served as a signalman for about half his time on the Tidewater, and he served as a military career counselor. In his capacity as a career counselor, he moved throughout the entire ship, including the workrooms, encouraging sailors to re-enlist in the navy. The Veteran's brother explained that he himself was familiar with asbestos and asbestos-containing materials because he had worked at a naval shipyard after his discharge from service, during the time frame when industrial hygienists were becoming aware of the dangers of asbestos. He provided his own opinion that his brother had been exposed to asbestos during his naval career and was likely exposed to some asbestos after his discharge through his work for a cabinet manufacturer, to include projects using Sheetrock. As noted above, the Veteran died in November 2005 of mesothelioma of the lung. Mesothelioma is the only cause of death listed on his death certificate, indicating that he had no other contributing disease or disability. Mesothelioma is a cancer associated with asbestos exposure. See VAOPGCPREC 4-2000. The death certificate also reflects that the Veteran was a carpenter, engaged in cabinet making prior to his death. In March 2007, the Veteran's treating oncologist submitted a medical opinion to the effect that the Veteran's mesothelioma was caused from his years of naval service. Two VA opinions, dated in April 2007 and in September 2010, however, indicate that there is not enough information about the Veteran's military and post-military occupational exposure to asbestos upon which to base a solidly-informed opinion as to where, when, or in what setting the Veteran was exposed to asbestos. Both opinions contain the information that mesothelioma is a cancer which is "almost always" caused by exposure to asbestos, and the authors of both opinions conclude that it is reasonable to assume that the Veteran was exposed to asbestos at some time in his life and that the asbestos exposure caused his mesothelioma. Upon careful review of the evidence of record, the Board concludes that the evidence supports the appellant's claim, or that at the very least, the evidence is in equipoise. While the evidence as to the Veteran's post-service asbestos exposure is inconclusive, his in-service-exposure is established to the Board's satisfaction. The medical evidence linking his terminal mesothelioma to asbestos exposure is firm and uncontroverted. For the VA to assume that the asbestos exposure which caused the Veteran's terminal cancer occurred after his discharge from service and not during service would require ignoring the fact that he was exposed to asbestos during service on board the USS Tidewater. Because the Veteran had in-service exposure to asbestos and because asbestos exposure is medically linked to the cause of his death, we must conclude that service connection for the cause of the Veteran's death is warranted. The benefit sought is therefore granted. ORDER Dependency and indemnity compensation based upon service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs