Citation Nr: 1234138 Decision Date: 09/28/12 Archive Date: 10/09/12 DOCKET NO. 92-17 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: P. J. Sebekos, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1982. He died in October 1990 at the age of 46. The appellant is the surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran's death. In February 1995 and in May 1996, the Board remanded this case for further development. By decision of March 2003, the Board denied service connection for the cause of the Veteran's death. However, in March 2006, the United States Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the matter for readjudication. In September 2007 and May 2010 the case was remanded for additional development. In January 2011, the Board denied the claim. However, that decision was vacated in June 2011 as the appellant's representative had submitted evidence and /or relevant evidence prior to the Board's issuance of the decision. The claim was remanded in June 2011 for consideration of the newly submitted evidence. In February 2012, the claim was remanded for additional evidentiary development. The case is now ready for further appellate consideration. FINDINGS OF FACT 1. At the time of the Veteran's death in October 1990 due to adenocarcinoma of unknown primary, service connection was in effect for rheumatoid arthritis, diabetes mellitus (DM), and a duodenal ulcer. 2. The Veteran's exposure (minimal) to asbestosis aboard a naval submarine during service is conceded. 3. A VA examiner has opined that the likely site of the Veteran's terminal cancer was in the lungs. 4. There is medical treatise information in the claims file that reflects that asbestos exposure has been determined to be a substantial contributing factor in the development of lung cancer for those who smoked. 5. The evidence reflects that the Veteran had a long history of cigarette smoking. 6. The medical evidence of record establishes that it is at least as likely as not that the Veteran's death-causing cancer was, at least in part, attributable to inservice asbestos exposure. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the Veteran's death was caused by a disability of service origin. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1310, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c) (2011). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Service Connection for the Cause of the Veteran's Death Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011). 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) (2011). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as carcinoma to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2011). The surviving spouse of a veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310 (West 2002 & Supp. 2011). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. § 3.312(a) (2011). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2011); 38 C.F.R. § 3.312 (2011). The service-connected disability will be considered as the principal (primary) 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) (2011). Contributory cause of death is inherently one not related to the principal cause. In determining whether a 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) (2011). 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 v. Brown, 4 Vet. App. 428, 429 (1993). 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 IV, 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 IV, Subpart ii, Chapter 2(C)(9). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, 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. M21-1MR, Part IV, 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. During World War II (WWII), several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. M21-1MR, Part VI, Subpart ii, Chapter 2, §C(9)(g). Background Appellant had earlier contended that the Veteran's fatal adenocarcinoma of unknown primary was the result of exposure to ionizing radiation during his service aboard nuclear- powered submarines; however, as the Court noted in its March 2006 decision, she has abandoned that theory of entitlement. The service treatment records (STRs) are entirely negative for any findings or diagnosis of a malignant tumor or cancer. Adenocarcinoma was diagnosed in August 1990, which was 8 years after the Veteran's separation from service. There is no medical evidence that cancer was present during the Veteran's active service or was manifested to a compensable degree within one year of his retirement from service. Womack Army Hospital records reflect that the Veteran was admitted in July 1990 for complaints of right upper quadrant pain with dyspepsia for 7 to 10 days. After a work-up, diagnoses included enlarged liver secondary to multiple metastases, likely from renal origin. A DA Form 3894, Hospital Report of Death, reveals that the Veteran died in October 1990 at Womack Army Hospital. The disease or condition directly leading to death was listed as adenocarcinoma (cancer) of unknown primary. The attending physician stated that the approximate interval between onset of the fatal cancer and death was "> 2 months", that is, greater than 2 months. A death certificate lists the immediate cause of death as adenocarcinoma of unknown primary. The approximate interval between onset and death is listed as 72 months. In its remands of February 1995 and May 1996, the Board requested that a statement be obtained from the physician to explain the apparent discrepancy between the statements on the hospital report of death and the death certificate regarding the approximate interval between the onset of fatal cancer and death. The RO was unable to locate the physician to obtain the requested clarifying statement from him. Appellant indicated, in January 2003, that she had not located that physician either. In April 1996, Appellant testified before the undersigned Veteran's Law Judge that a private physician, who had treated the Veteran prior to his death, indicated that the Veteran could have had the fatal cancer as much as 12 years prior to his death. The RO later obtained copies of the Pinehurst Medical Clinic records which do not contain such an opinion. The Board found, in its March 2003 decision, that it is more likely that the entry on the hospital report of death form reflected Dr. W. J. L.'s judgment at that time. Thus, the opinion of the attending physician was that the onset of the veteran's fatal cancer and his death occurred more than 2 months prior to his death. In March 2006, the Court remanded the case because the Board had not sufficiently explored possible contributory causes of death. The Board remanded the case in September 2007 and May 2010 for development. In March 2008, Appellant submitted medical articles that address possible relationships between diabetes mellitus and various cancers. One article concludes, "In comparison with the general population, patients with diabetes mellitus have an increased risk of renal cell cancer." In December 2009, the physician who had signed the October 1990 death certificate reported that after reviewing the case, the time between onset and death could be stated as "three months." In June 2010, a VA physician reviewed the pertinent medical history and addressed the likelihood that service-connected disabilities had contributed to the cause of death. The physician noted that the record had suggested possible primary renal cancer due to a mass in one kidney, but a later ultrasound showed no mass. The physician noted that it was then felt that the most likely primary cancer was lung cancer, because of the presence of a hacking cough for some months prior to admission, the discovery of mediastinal and axillary adenopathy and perihilar mass, and a long history of smoking. The VA physician noted that diabetic patients have increased risk for certain types of cancer, such as colorectal cancer, but have no increased risk for other cancers such as lung cancer or prostate cancer. The physician noted that although the source of the primary cancer was not explored during the lifetime of the Veteran, because it was so advanced at the time of discovery, it was more likely that the primary cancer was lung cancer. This conclusion is based on statistical research published by the American Cancer Society, according to the physician. The VA physician then reported, "Also, there is no indication that the arthritis or the peptic ulcer disease were factors in the development of his metastatic cancer." The VA physician then qualified these opinions by noting that her/his certification is in internal medicine, rather than oncology. Excerpts from medical treatises, to include one that concluded that asbestos exposure has been determined to be a substantial contributing factor in the development of lung cancer for those who smoked, were added to the record in early 2011. Therefore, if one was exposed to asbestos and developed lung cancer, he or she might be entitled to asbestos compensation, even if one smoked. Also submitted was an article regarding the use of Prednisone and its effect on one's health. In February 2012, the Board remanded the claim for additional development. Attempts to verify the Veteran's exposure to asbestos were to be accomplished. Also, an examiner was to address whether it was at least as likely as not that the Veteran's use of Prednisone worsened his diabetes, to include high blood sugar, increased risk of infections, suppressed adrenal gland hormone production, and/or caused other side effects which produced debilitating effects and impairment of health so that the Veteran was materially less capable of resisting the effects of cancer that caused his death? The examiner was also asked to address whether the Veteran's use of aspirin caused hepatic dysfunction rendering him materially less capable of resisting the effects of liver metastatic cancer of the liver? The record reflects that after extensive research by the Naval Historical Center, Naval Sea Systems Command, and National Records Processing Center, it could still not be conclusively confirmed that the Veteran was exposed to asbestos. However, based on his service at sea and his being on board numerous sea crafts (with various designations) it was concluded by the Board that there was minimal probability of exposure and this was noted in the medical opinion request in June 2012. The VA examiner who had conducted a review of the file in September 2011 noted that he reviewed the additional records, contentions, and clarification request. In a July 2012 report, he again opined that the Veteran's death due to metastatic carcinoma of unknown primary was less likely than not caused by or a result of and less likely than not permanently aggravated by his service-connected conditions or medications taken for his service-connected conditions. The examiner specifically noted that he was unaware of scientific evidence to support a contention that the use of intermittent low-dose Prednisone worsened the outcome from metastatic cancer. Prednisone and related drugs in relatively high doses were used for the treatment of some type of cancers (lymphoma and myeloma) and for some effects of cancer compression of the spinal cord and brain metastases). That is, Prednisone prolonged life for patients with cancer. He added that the case file provided no evidence from the contemporary medical record that the Veteran's death was hastened from use of Prednisone. As to whether the Veteran's use of aspirin caused hepatic dysfunction that placed the Veteran at an increased risk of death from metastatic liver adenocarcinoma of the known primary origin, the doctor noted that he had previously addressed the risk of development of cancer in those who used aspirin. He stated that there was no increased risk. He further noted that there was no evidence that the Veteran's liver was damaged by the amount of aspirin he was taking. In any cases, the effects of the metastatic cancer on the liver were far greater than any putative liver damage from aspirin, alcohol, or any other drug the Veteran might have consumed. The radiographic imaging from the time showed the extensive damage to the liver caused by the cancer which was more than sufficient to induce hepatic failure in a previously normal liver. Additional contentions raised were that the metastatic carcinoma was caused by exposure to asbestos during his service. The examiner noted that this theory was dependent on the metastatic carcinoma being of lung origin which was most likely but not certain. There was no quantitation of asbestos exposure or bioassay available for the Veteran. However, the occupations in which the Veteran served were expected to pose minimal risk of asbestos exposure. As noted in the Veteran's records, he served on the USS Alexander Hamilton and USS Thomas Edison for a period of over 67 months in various capacities. The examiner noted that his review of the evidence reflected that the Veteran was a heavy smoker and referred to numerous records corroborating that the Veteran had a long history of smoking. (The Board notes that a 40 year history of smoking two packs a day was reported on a medical record noted in 1990). He quoted a medical treatise as reflecting that while asbestos exposure did increase the risk of lung cancer, it was much more likely to be attributable to smoking ("about 10 fold higher risk") than to asbestos exposure. Analysis After consideration of the evidence, including the statements from the appellant, and with all reasonable doubt resolved in her favor, the Board finds that service connection is warranted for the cause of the Veteran's death because the probative evidence does suggest that his death was, at least in part, the result of service (through causation). Clearly, the STRs reflect no diagnoses of adenocarcinoma, and the initial diagnosis of the condition dates decades after separation from service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). Additionally, the record includes no competent medical evidence linking rheumatoid arthritis, diabetes mellitus, or duodenal ulcer (or medications taken for those conditions) to the fatal adenocarcinoma. As summarized above, a VA examiner opined that while asbestos exposure in a smoker did increase the risk of lung cancer, in this case it was much likely that his fatal cancer was the result of the Veteran's long history of cigarette smoking alone. He specifically noted a medical treatise showed that the risk of smoking was "10 fold" more likely to cause this cancer than exposure to asbestos. Given this finding, however, and noting that at least minimal asbestos exposure and a long history cigarette smoking has been conceded, the evidence of record provides a medical nexus between the Veteran's active service and his terminal cancer diagnosis. As service connection may be granted for any disease first diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes a link to service, and as the competent evidence of record favors the cliam, service connection for cause of the Veteran's death is warranted. 38 C.F.R. § 3.303(d) (2011). In light of the foregoing, all doubt is resolved in favor of the appellant, and entitlement to service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs