Citation Nr: 1230053 Decision Date: 08/30/12 Archive Date: 09/05/12 DOCKET NO. 09-21 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to December 1959. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By way of background, the Board remanded the appellant's claim for further evidentiary development in August 2011. After completing the requested development, the Appeals Management Center (AMC) readjudicated the claim, as reflected by a September 2011 supplemental statement of the case. Because the benefit sought remains denied, the claim has now been returned to the Board for further appellate review. 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). FINDINGS OF FACT 1. The Veteran died in May 2008. The immediate cause of death was chronic obstructive pulmonary disease (COPD). 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. COPD was not manifested during service or until many years thereafter. 4. A disability of service origin was not involved the Veteran's death. CONCLUSION OF LAW A service-connected disease or disability did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for DIC benefits, § 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a September 2011 communication, and the claim was thereafter readjudicated in a July 2012 supplemental statement of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). The Board also finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issue on appeal has been obtained. The Veteran's service treatment records are of record, as well as his relevant private and VA treatment records. Moreover, a VA/Independent Medical Opinion addressing a potential relationship between the Veteran's cause of death and service was obtained, and the Board finds that this opinion is sufficient for adjudicatory purposes as it is based on an accurate review of the record and is supported by a sufficient rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the appellant's claim. Therefore, no further assistance to the appellant with the development of evidence is required. Legal Criteria/Analysis The appellant seeks service connection for the cause of the Veteran's death. She specifically asserts that his terminal chronic obstructive pulmonary disease (COPD) was the result of asbestos exposure during service. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also 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). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary 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 the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Jan. 31, 1997). Also, a precedent opinion by VA's Office of General Counsel has discussed the development of asbestos claims. See VAOPGCPREC 4-00 (Apr. 13, 2000). VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols, using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Manual M21-1, Part VI, para. 7.21(b)(2) (Jan. 31, 1997). An asbestos-related disease could develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must also determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have made specific reference to the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With these claims, the RO 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, keeping in mind the latency and exposure information discussed above. Manual M21-1, Part VI, para. 7.21(d)(1) (Jan. 31, 1997). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). VA death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312. 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 the principal or contributory cause of death. 38 C.F.R. § 3.312. In order 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. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b), (c). Facts/Analysis Again, the appellant asserts that the Veteran's terminal COPD was the result of claimed asbestos exposure during service. The Veteran died in May 2008. The death certificate lists COPD as the immediate cause of death. Congestive heart failure and dementia are listed as "other significant conditions contributing to death" but not resulting in the underlying cause. Service connection was also not in effect for COPD, or any other disability, at the time of his death. The service treatment records, to include the reports from the November 1959 separation examination, do not reflect COPD or any other lung disorders. Chest x-rays taken throughout service were consistently negative. Service personnel records (SPRs) show that the Veteran's military occupational specialty was airman and crewman and that he served aboard the U.S.S. Tarawa. Numerous statements from the Veteran (during his lifetime) and the appellant (in support of her claim) indicate that he was exposed to asbestos while serving aboard the U.S.S. Tarawa (e.g, in the living quarters), from January 1959 to December 1959, and while working on aircraft engines and braking systems. See, e.g., Statement from Veteran, August 2004. Thus, to the extent that all of the manual provisions for developing claims based on asbestos exposure were not followed, and resolving all reasonable doubt in the appellant's favor, the Board will assume for the purposes of this decision that the Veteran was exposed to asbestos during service. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005); 38 C.F.R. § 4.3. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Manual M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Notwithstanding the above, the issue in the case is whether there is any competent evidence showing that the Veteran had a pulmonary disorder, to specifically include COPD, which can be related to asbestos exposure during service or any pulmonary dysfunction shown therein. Again, the service treatment records, to include the reports from the January 1959 separation examination, do not reflect COPD or any other pulmonary disability. The first post service reference to lung or pulmonary problems was in an April 1999 private x-ray report. That report noted "bilateral interstitial fibrosis consistent with asbestosis." However, a CT scan conducted in May 1999 (and compared against the April 1999 chest x-ray) indicated no such disability; rather, the May 1999 CT scan showed bullous emphysema and no "definite" lesions, nodules, masses, or pleural effusions. In June 2004, the Veteran's treating physician, Dr. Crain, submitted a letter indicating that the Veteran suffered from multiple medical problems, including COPD ischemic heart disease, peripheral vascular disease, and dust-related lung disease. Dr. Crain further noted that the Veteran was exposed to asbestos both in-service and after service in his civilian employment as a diesel mechanic. He noted that the chest x-ray was abnormal and "may also have changes related to asbestos exposure." Dr. Crain did not, however, definitively link COPD (or any other pulmonary disease) to asbestos exposure. The Veteran was afforded a VA respiratory examination in November 2004. The Veteran outlined an extensive medical history, including statements that he was exposed to asbestos during service and that he worked as a diesel mechanic following service, from 1965 to 1981. He also stated that he drove a truck for a relatively short period of time. He further reported that he began smoking at the age of 17 and continued to smoke to the present day (approximately 38 years at over one pack per day). The VA examiner noted that a previous chest x-ray in April 1999 showed bilateral interstitial fibrosis consistent with asbestosis, and that a May 1999 CT scan indicated bullous emphysema. The examiner noted that there were no interstitial markings noted and no pleural plaques or pleural thickening to suggest asbestos related lung disease on the May 1999 CT scan. (Emphasis added) Current symptoms included paroxysms with non-productive coughing and dyspnea on exertion. The diagnostic impression was severe chronic obstructive pulmonary disease and bullous emphysema. The examiner expressly noted that the Veteran did not have any evidence of asbestos related lung disease. He also opined that the Veteran's asbestos in the military "would seem to have been relatively limited with further more significant asbestos exposure probably encountered as a diesel mechanic and working with asbestos brake pads." A contemporaneous VA chest x-ray (also conducted in November 2004) indicated "no acute lung disease." Private treatment records from Dr. Crain dated from 2002 to 2007 reflect continued treatment and diagnoses of severe COPD, occupational dust disease, and emphysema For example, a February 2002 clinical note indicated that the Veteran's history was pertinent for emphysema, silicosis, and asbestosis. The Veteran reported that he worked as a diesel mechanic and that he was exposed to fumes; the Veteran also reported that he had been smoking 2 packs of cigarettes per day for the past 20 years or so. Chest x-rays at that time showed scattered granulomas, but were negative for effusions, plaques, or pleural disease. The pertinent diagnoses were obstructive sleep apnea, COPD, and occupational dust exposure with "probably" some related lung disease. A July 2007 letter from Dr. Crain indicates that the Veteran had been followed for several years for COPD and occupational dust disease/pneumoconiosis. The letter went on to explain that "it is felt that his pneumoconiosis was related to occupational exposure." Dr. Crain explained that the Veteran had been exposed to asbestos in the military and afterwards, as diesel mechanic. In August 2011, the Board remanded the claim for a VA medical nexus opinion concerning the likelihood of the Veteran's terminal COPD being due to his military service, including asbestos exposure. See BVA Remand, p. 7. The RO obtained an Independent Medical Opinion in July 2012. The entire claims file was reviewed and the examiner appropriately noted the private medical evidence from Dr. Cain; the Veteran's statements regarding in-service and post-service asbestos exposure; the November 2004 VA respiratory examination; and the Veteran's STRs. The examiner opined that it was less likely than not that the Veteran's terminal COPD was the result of his military service, to include as due to asbestos exposure. The examiner reasoned that the STRs were negative for pulmonary complaints; that his exposure to asbestos during service was relatively limited compared to his post-service exposure as a diesel mechanic, from 1965 to 1981; that the Veteran had smoked cigarettes from the age of 17 until the time of the C&P examination in 2004; and that the chest CT performed in showed bullous emphysema. After a review of all the above evidence, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection the cause of the Veteran's death. In so finding, it is noted that it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this regard, the Board finds that the July 2012 Independent Medical Opinion, which is based on a complete review of the record and supported by rationale, is more probative than the June 2004 and July 2009 letters from Dr. Crain, which are not based on a complete review of the record and fail to definitely relate the Veteran's terminal COPD to service, to include asbestos exposure therein. Indeed, while Dr. Crain notes that the Veteran was exposed to asbestos both during and after service, and states that he "may" have had changes related to asbestos exposure, his conclusions regarding COPD, the immediate cause of the Veteran's death in this case, are ambivalent and speculative, at best. In addition, the Board finds it noteworthy that the Veteran's very significant history (38+ years) of cigarette smoking was not considered as part of Dr. Crain's analysis, whereas the July 2012 examiner carefully weighed such factors in rendering his opinion. The July 2012 examiner also considered the nature of the Veteran's asbestos exposure (e.g., minimal in-service exposure when compared to lengthy post-service exposure as a diesel mechanic and working with brake pads). For all of these reasons, the private medical opinions of record are afforded less probative value than the July 2012 Independent Medical Opinion. The Board also notes that the July 2012 Independent Medical Opinion is supported by other medical evidence of record, to include the November 2004 VA examination which found that the Veteran did not have asbestos-related lung disease and that his exposure to asbestos in-service was likely minimal compared to his post-service exposure. Accordingly, for all of the reasons outlined above, the Board finds that the preponderance of the evidence is against the appellant's claim and, thus, entitlement to service connection for the cause of the Veteran's death must be denied. In so finding, the Board acknowledges appellant's assertions that the Veteran's post-service asbestos exposure was minimal and that he only worked as a mechanic for approximately six months in the early 1960's. See Report of Contact, November 2008. While the appellant is competent to report on such matters, the Board finds the statements made by the Veteran during his lifetime are a more accurate depiction of his post-service occupational history. Indeed, in an August 2004 statement, the Veteran expressly stated that he worked in a tire store for six years, as a truck driver for 2 years, and a "mechanic" for 31 years. See August 2004, VA Form 21-4138. Thus, the appellant's statement regarding the nature of the Veteran's post-service occupational asbestos exposure are competent, but ultimately less credible than those made by the Veteran himself. Lastly, the Board acknowledges that the appellant has submitted several, generalized internet articles regarding asbestos-related disorders. See October 2011 Web MD Article. However, the Board finds that such articles have limited probative value because the submitted material does not take into account the facts of the Veteran's case. While a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet.App. 222, 228 (1999); see also Sacks v. West, 11 Vet.App. 314 (1998); Wallin v. West, 11 Vet.App. 509 (1998). In sum, the appellant's main contention is that the terminal COPD was the result of the asbestos exposure during service. This subject was expressly addressed by the July 2012 Independent Medical examiner, and to a lesser extent, by the November 2004 VA examiner (in the context of the Veteran's service connection claim). The July 2012 examiner opined that it was unlikely (significantly less than a 50 percent probability) that the Veteran's terminal COPD was due to service, to include asbestos exposure, while the November 2004 VA examiner opined that the Veteran did not have any asbestos-related lung diseases, to specifically include interstitial pulmonary fibrosis (asbestosis) which was ruled out by a May 1999 CT scan. The Veteran died as a result of COPD. The preponderance of the evidence shows that the terminal COPD was not related to the Veteran's period of active duty, including exposure to asbestos during service. For these reasons, the Board finds that service connection for the cause of the Veteran's death is not warranted, and the appeal must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs