Citation Nr: 1217890 Decision Date: 05/18/12 Archive Date: 05/31/12 DOCKET NO. 11-26 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for lung cancer for accrued benefits purposes. ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active military service from January 1951 to January 1954; he died in November 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The appellant seeks service connection for the cause of the Veteran's death. She essentially contends that the Veteran's respiratory failure that was due to his non-small cell carcinoma of the lung was caused by exposure to asbestos while he was stationed at Fort Benning, Georgia, which eventually caused the Veteran's death. Service connection may be established for the cause of a Veteran's death when a service-connected disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a) (2011). A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b) (2011). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1) (2011). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011). Service connection may also be established for disability resulting from personal injury suffered or disease contracted in line of duty in service. See 38 U.S.C.A. § 1110 (West 2002). Service connection for the cause of a Veteran's death requires a showing that either the fatal disorder or disease was incurred in, or aggravated by, an incident or event in service or, with certain chronic diseases, to include malignant tumors, was manifest to a compensable degree within one year of service discharge. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). To the extent that the appellant has alleged that the cause of the Veteran's death may be linked to exposure to asbestos during his period of active duty service, the Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The appellant contends that the Veteran was exposed to asbestos at Camp Merrill U.S. Army Infantry Center at Fort Benning, Georgia where he was stationed for the majority of his active military duty. The Veteran's military operational specialty was that of parachute infantryman. The appellant argues that the Veteran's only exposure to asbestos was at Fort Benning. The appellant supplied internet research from the Environmental Protection Agency noting that Camp Merrill-U.S. Army Infantry Center at Fort Benning, Georgia is on the National List of Asbestos Landfills. It has also been asserted that while stationed at Fort Benning, the Veteran was exposed to asbestos contained in some of the old barracks. See, e.g., November 2009 letter from a county veterans service officer to Doctor Akhtar. While it is noted that the Veteran did serve at Fort Benning, it has not been determined through official channels whether the Veteran was exposed to asbestos while stationed at Fort Benning. As such it is necessary to determine if the Veteran was indeed exposed to asbestos during his active duty service. In attempting to retrieve the Veteran's service personnel and treatment records the RO learned that his records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC). The Board notes there is a heightened obligation to assist a Veteran in light of the unavailability of service treatment records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which service treatment records are presumed destroyed includes the obligation to search for alternative medical records). The Board notes that the Veteran's death was caused by respiratory failure due to non-small cell carcinoma of the lungs and that lung cancer is included in the list of asbestos-related diseases/abnormalities. In this regard, in Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims (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. See VAOGCPPREC 04-00. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service-connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). A November 2009 letter from the Veteran's treating physician for his stage IV non-small cell lung cancer, noted that he had treated the Veteran since October of 2007 and that it was his medical opinion that the Veteran's lung cancer was at least as likely as not related to the Veteran's exposure to asbestos during his military service. Additionally, the Veteran's referring physician, in an October 2009 statement and again in a December 2010 follow-up statement noted that asbestos exposure is an independent risk factor for the development of bronchogenic carcinoma and certainly could have contributed to the development of the Veteran's lung disease. With consideration of the above, the Board finds that a remand is necessarily initially to determine if the Veteran was exposed to asbestos while he was stationed at Fort Benning. Subsequently, if it is determined that the Veteran was exposed to asbestos, a review of the medical record, to include an opinion with regard to whether any asbestos exposure resulted in the Veteran's lung cancer which caused his death should be obtained. With regard to the appellant's claim for accrued benefits, the Board notes that this claim is inextricably intertwined with the claim for the service connection for cause of the Veteran's death; as such, adjudication of this claim is deferred pending resolution of the issues set forth above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO should take appropriate action to develop evidence as to whether the Veteran was exposed to asbestos during service to include due to his proximity to any asbestos landfill at Camp Merrill-U.S. Army Infantry Center or living in old barracks that contained asbestos at Fort Benning. Information should be obtained from official government entities including the appropriate service department and/or other appropriate depository. Following such, a formal finding should be issued as to whether the Veteran at least as likely as not was exposed to asbestos in service. Such finding should be added to the record and should include a rationale in support of the conclusion reached. 2. If and only if it is determined that the Veteran was exposed to asbestos during active duty service, the Veteran's claims file should be reviewed by an appropriate medical specialist for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that a disability of service origin contributed substantially or materially to the cause of the Veteran's death resulting from respiratory failure as due to non-small cell carcinoma of the lungs, to include as a result of asbestos exposure. The claims folder must be made available for review of the case and a notation to the effect that this record review took place should be included in the report. A complete rationale for all opinions expressed should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the appellant should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ S. L. Kennedy 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).