Citation Nr: 1237642 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-19 473 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1964. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in August 2007 and at a hearing before the undersigned Veterans Law Judge in March 2011. In June 2011, the Board reopened this claim and remanded for additional development. FINDINGS OF FACT 1. The Veteran died on January [redacted], 2003; the immediate cause of death was squamous cell carcinoma of the tonsil. Tobacco use was listed as a condition leading to the immediate cause of death. 2. At the time of the Veteran's death, service connection was in effect for a left foot disability, rated 10 percent. 3. The competent evidence does not show that the Veteran's death was caused by an illness or disease incurred in or aggravated by active duty service including exposure to asbestos. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. Generally, notice for a DIC case must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 21 Vet. App. 342 (2007); 38 U.S.C.A. § 5103(a) (West 2002). The appellant was not provided with the a specific notice meeting those criteria. However, the Board concludes that error was nonprejudicial, as the Veteran was only service-connected for a left foot disability prior to his death and the appellant contends that the Veteran's death was related to the Veteran's exposure to asbestos while serving aboard a ship in the Navy during his active service. Hupp v. Nicholson, 21 Vet. App. 342 (2007). Furthermore, the appellant's arguments have indicated actual knowledge of those elements of notice. The RO sent correspondence in September 2006 and a rating decision in January 2007. Those documents discussed specific evidence, particular legal requirements applicable to the claim, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the February 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (claimant afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained a medical opinion with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). There has been no specific statutory guidance with regard to claims for service connection for asbestos-related diseases, and VA has not promulgated any regulations, but there are some procedural guidelines. McGinty v. Brown, 4 Vet. App. 428 (1993). In May 1988, VA issued a circular on asbestos-related diseases that provided some guidelines for considering compensation claims based on exposure to asbestos, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular). The DVB Circular was rescinded by the Director of the VA Compensation and Pension Service in September 1992, and, at that time its contents were added as paragraph 7.68 (now paragraph 7.21) of Part VI of the VA Adjudication Procedure Manual, M21-1 (Manual M21-1). The provision does not give rise to enforceable substantive rights and does not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141 (1999). According to Manual M21-1, Part VI, paragraph 7.21, the most common disease related to asbestos exposure is interstitial pulmonary fibrosis (asbestosis), and clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In addition, it is stated that asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. In paragraph 7.21 it is also noted that cancers of the larynx and pharynx and the urogenital system (except the prostate) are also associated with asbestos exposure. A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2011). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(c) (2011). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death; instead, a causal relationship must be shown. 38 C.F.R. § 3.312 (2011). Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the Veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312 (c)(3) (2011). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2011). The appellant contends that the Veteran's death from squamous cell carcinoma of the tonsil should be service-connected because of his in-service exposure to asbestos. Specifically, the appellant testified that she believes the Veteran's exposure to chemicals in service caused his cancer and ultimately caused his death. The Veteran died in January 2003. The immediate cause of death was squamous cell carcinoma of the tonsil due to or as a consequence of tobacco use. At the time of the Veteran's death, service connection was in effect for a left foot disability, rated 10 percent. A review of the service medical records does not show any reports, findings, or treatment for any disorder of the throat or tonsils. Clinical evaluation of the mouth and throat were normal at the Veteran's enlistment examination in April 1961, at examinations dated in September 1961 and October 1962, and at his September 1964 separation examination. The Veteran denied throat trouble on report of medical history forms prepared in conjunction with examinations dated in April 1961, September 1961, and August 1962. A review of the Veteran's VA outpatient treatment reports shows that the Veteran developed a large ulcerating mass on his left tonsil in 2001 which led to a direct laryngoscopy and biopsy in October 2001 which showed invasive squamous cell carcinoma of the left tonsil. A computed tomography (CT) scan of the lung in October 2001 showed a small pulmonary nodule which remained unchanged on a May 2002 followup. The Veteran's primary cancer was not resectable and he was treated with radiation therapy for palliation of symptoms with no reasonable prospect of cure given the size of the tumor. An October 2001 consultation from J. Lopez, M.D., shows a diagnosis of squamous cell carcinoma of the left tonsil with extensive lymph node metastases and possible pulmonary metastases, status post biopsy. The Veteran eventually entered hospice care and died at home in January 2003. At an August 2007 hearing before a Decision Review Officer, the appellant testified that she believed that the all of the Veteran's post-service VA treatment records were not of record because he had treatment at VA until his death and the records referenced in the rating decision were dated through October 1996. She indicated that the Veteran also had colon cancer and that he had stopped smoking eight years prior to his diagnosis with cancer. At a March 2011 hearing before the undersigned Veterans Law Judge, the appellant testified that the Veteran had cancer of the throat, stomach, and lung due to chemical exposure in service. She indicated that the Veteran stopped smoking eight years prior to his death. The appellant testified that the Veteran told her that he was exposed to toxic chemicals and asbestos while serving on active duty. A September 2011 response from the Naval Sea Systems Command indicates that the Veteran was likely exposed to asbestos while serving aboard the USS Barton from 1962 to 1964. A VA medical opinion was obtained from a Board Certified Oncologist-Hematologist and former Chief of Oncology-Hematology in December 2011. The specialist opined that the Veteran's death from metastatic squamous cell carcinoma of the tonsil was not caused or aggravated beyond its natural progression by the Veteran's exposure to asbestos in service, that it was less likely as not that the Veteran's fatal metastatic squamous cell was caused by or aggravated beyond its natural progression by his exposure to toxic chemicals in service, and the Veteran's death was not caused, hastened, or substantially or materially contributed to or by any other event, injury, or disease in service. The specialist reviewed the Veteran's medical history and noted the appellant's contention that the Veteran's exposure to asbestos and chemicals to clean boilers aboard the USS Barton caused his cancer and that his smoking history was not relevant because he stopped smoking five years prior to his cancer diagnosis. The specialist noted that the appellant reported that the Veteran stopped smoking in 1995. The specialist reported that the Veteran's VA oncologist noted that the Veteran stopped smoking at the time of his myocardial infarction in 1996. The examiner indicated that the smoke-free period of time was five years from cessation in 1996 to diagnosis in 2001. The examiner acknowledged the appellant's report that three doctors told her and the Veteran that the Veteran's cancer was not due to smoking. However, the physician indicated that as a Board Certified Oncologist-Hematologist with more than thirty years experience he was highly skeptical that any oncologist would make a statement that the Veteran's squamous cell carcinoma of the tonsil was not due to smoking. He indicated that those statements were most likely made by medical residents or medical students whose expertise in oncology was very limited. The examiner stated that while it was true that the risk of developing squamous cell carcinoma of the tonsil (and other cancers of the head and neck region) fell with time after quitting smoking, the risk did not return to that of non-smokers until twenty years had elapsed. He cited medical literature to support that proposition. The specialist reported that the Veteran's period of non-smoking was only five years and because all cancers are present for many months to several years before they become clinically recognized, the smoke-free period was more likely in the range of three years for the Veteran. The examiner concluded that smoking was by far the most likely cause of the Veteran's squamous cell carcinoma of the tonsil. With regard to the role of asbestos exposure in the etiology of aggravation of the Veteran's cancer, asbestos was not associated with squamous cell carcinoma of the tonsil. The examiner noted that asbestos exposure was associated with squamous cell carcinoma of the lung, and other lung cancers including mesothelioma. As to the question of whether toxic chemicals played any role in the etiology of the Veteran's cancer, there were no data supporting a role of toxic chemicals in the Veteran's form of cancer. The examiner reiterated that the greatest risk factor was tobacco use and alcohol and the Veteran had a thirty year history of smoking. The examiner based the opinion on a review of the claims file, the Veteran's VA medical records, and a thirty plus year experience as a Board Certified Oncologist-Hematologist. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the appellant is not entitled to service connection for the cause of the Veteran's death. The Board finds that the evidence does not include competent evidence showing a relationship between the Veteran's cause of death and his period of active service. Although the appellant contends that the cause of the Veteran's death is due to exposure to asbestos and toxic chemicals during active service, she has submitted no competent medical evidence or opinion to corroborate this contention. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The appellant's opinion is insufficient to provide the requisite etiology of the cause of the Veteran's death because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512 (2004); Routen v. Brown, 10 Vet. App. 183 (1997) (layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the appellant's statements regarding the Veteran's cause of death being related to his active service, including exposure to asbestos and toxic chemicals, are merely speculation as she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to etiology. The Board finds the VA medical opinion proffered by a Board Certified Oncologist-Hematologist in December 2011 to be more probative as to the etiology of the Veteran's squamous cell carcinoma of the tonsil. The specialist provided a thorough rationale and cited to medical literature to support the opinion. The specialist opined that the Veteran's death from metastatic squamous cell carcinoma of the tonsil was not caused or aggravated beyond its natural progression by the Veteran's exposure to asbestos in service, that it was less likely as not that the Veteran's fatal metastatic squamous cell was caused by or aggravated beyond its natural progression by the Veteran's exposure to toxic chemicals in service, and the Veteran's death was not caused, hastened, or substantially or materially contributed to or by any other event, injury, or disease in service. The Board accepts the VA examiner's opinion as being the most probative medical evidence on the subject, as it was based on a review of all historical records, and contains detailed rationale for the medical conclusion. Boggs v. West, 11 Vet. App. 334 (1998). Because of the depth of the opinion report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, there is no contrary opinion of record. The appellant has not submitted any competent evidence which provides a basis for the conclusion that the cause of the Veteran's death was caused or aggravated by his active service. The Veteran's squamous cell carcinoma of the tonsil was found by medical evidence to be more likely related to tobacco use. A Veteran's death shall not be considered to have resulted from injury suffered or disease contracted during service on the basis that it resulted form the sue of tobacco products during the Veteran's service. 38 U.S.C.A. § 1103 (West 2002). Therefore, service connection is not warranted for the cause of the Veteran's death based on the use of tobacco. The Board also notes that there is no evidence of record that shows that the service-connected left foot disability played in part in the Veteran's death. Therefore, service-connection for cause of death due to the left foot disability is not warranted. The Board is very sympathetic to the appellant for the loss of her husband. Unfortunately, for the reasons and bases set forth above, the Board must conclude that the preponderance of the evidence is against the appellant's claim, and service connection for the cause of the Veteran's death must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2011). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs