Citation Nr: 1204729 Decision Date: 02/07/12 Archive Date: 02/16/12 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 Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from August 1962 to August 1982. He died in October 1990 at the age of 46. The appellant is the surviving spouse. This appeal to the Board of Veterans Appeals (Board) arises from a rating action 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 death; however, in March 2006, the United States Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the matter for re-adjudication. In September 2007, May 2010, and June 2011 the Board again remanded the case. The case has been returned to the Board and is ready for further review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide claim so that the appellant is afforded every possible consideration. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In a statement sent to the Board in November 2011, the appellant's attorney has requested that the medical opinion afforded in this case be clarified and that additional opinion be obtained. In March 2003, the Board denied the appellant's claim, finding that the Veteran's service connected arthritis, diabetes and ulcer did not cause his death. The appellant appealed that denial to the Court and the denial was vacated by the Court. The appellant's attorney noted that VA obtained an opinion in September 2011, and argues that the opinion is inadequate since it did not discuss the risks posed by long-term pharmacological treatment of the Veteran's service connected conditions. It was noted that the Veteran was prescribed Prednisone for his arthritis, which is an immunosuppressant in many disorders. It was argued that the risks of the medication include high blood sugar which can worsen diabetes, an increased risk of infections, suppressed adrenal gland hormone production and/or other side effects produces debilitating effects and impairment of health so that the Veteran was materially less capable of resisting the effects of cancer that caused his death. It was pointed out that the use of Prednisone in relation to carcinoma was discussed but the appellant has argued that the medication worsened the Veteran's diabetes. The attorney stated that the VA examiner has not addressed the possible side effects of Prednisone in offering the opinion provided. It is also argued that the examiner did not adequately address the Veteran's long term use of aspirin for his arthritis which she argues put him at increased risk of death from liver cancer. The attorney referred to medical literature which he posits suggests that patient with arthritis who are treated with high doses of aspirin develop hepatic dysfunction. As to the opinion offered the attorney argues that the examiner stated that the Veteran's hepatic functions were normal prior to July 1990 however the examiner did not cite the evidence to support this. Further it is argued that the opinion was not specific. Additionally the attorney is now arguing that the Veteran was exposed to asbestos during his service in the Navy as a submariner and that this could have caused his metastic carcinoma from a primary site, most likely from the lung. The attorney pointed out that the VA examiner stated that that the primary site of the Veteran's cancer was the lungs. A medical opinion regarding this theory of entitlement is requested. The Board notes that all theories of entitlement for establishing the same benefit for the same disability constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000), and Robinette v. Brown, 8 Vet. App. 69 (1995) (each holding that all legal theories, even those unknown to the Veteran, for which the benefit sought can be obtained must be considered). The original denial provided with respect to the cause of death therefore constitutes a denial with respect to every other theory of entitlement as well for the cause of the Veteran's death to include as due to exposure to asbestosis. The RO must address this theory of entitlement. VA has issued a circular as to claims of service connection for asbestosis or other asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the appellant's claim under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. To date, the appellant has not been provided with notice consistent with Hupp v. Nicholson, 21 Vet. App. 342 (2007). In the context of a claim for DIC benefits, 38 C.F.R. § 5103(a) notice 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. Id. at 352-53. The Board acknowledges that the RO attempted to provide the appellant with adequate notice of the elements necessary to substantiate her claim for benefits in October 2007. Significantly, however, this letter did not include a statement of the conditions for which the Veteran was service connected at the time of his or an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Given the deficiencies in the October 2007 letter, notice compliant with 38 U.S.C.A. § 5103(a) and Hupp should be issued before the Board renders a decision in this case. Accordingly the claim is remanded for the following action: 1. Send the appellant and her representative corrective notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes (1) a statement of the conditions for which the Veteran was service-connected at the time of his death and (2) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service- connected in accordance with Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. Contact the appellant and request that she provide a complete history of the Veteran's pre-service and post-service occupational or other asbestos exposure. 3. The RO/AMC should attempt to verify the Veteran's in-service asbestos exposure by contacting the Naval Historical Center, Ships History Branch and the Naval Sea Systems Command or other relevant Department of Defense office, regarding asbestos aboard the ships to which the appellant was assigned. All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. If it is determined that the Veteran was exposed to asbestos during service, refer the file to a VA examiner for an opinion was to whether it is at least as likely as not that the Veteran's death was related to any established in-service exposure to asbestos, or is otherwise related to the Veteran's military service. The examiner must explain the rationale for all opinions given. 4. Return the file to the September 2011 VA physician for an addendum opinion. If that doctor is not available, have the file reviewed by another examiner for an opinion. After reviewing the file, to include the arguments presented by the appellant's attorney, the examiner should address the following: 1. Is it at least as likely as not that the Veteran's use of Prednisone worsened his diabetes to include high blood sugar, an increased risk of infections, suppressed adrenal gland hormone production and/or other side effects produces debilitating effects and impairment of health so that the Veteran was materially less capable of resisting the effects of cancer that caused his death? 2. Did the Veteran's use of aspirin cause hepatic dysfunction rendering the Veteran materially less capable of resisting the effects of liver metastic cancer of the liver? Complete rationale should be provided for the findings. 5. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2011); See also Stegall v. West, 11 Vet. App. 268 (1998). 6. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the appellant and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).