Citation Nr: 1307017 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 09-38 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Ann L. Martin, Attorney ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty in the Navy from January 1951 to November 1954. He died in October 2007. The Appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant and her representative submitted additional medical records from the Lancaster General Cancer Center in September 2012. These records were associated with the claims file prior to the Board's September 2012 request for a Veterans Health Administration (VHA) opinion. While the Appellant did not waive her procedural right to have this evidence reviewed by the agency of original jurisdiction (AOJ) prior to consideration by the Board, because the decision below constitutes a full grant of the benefits sought in this case, the Board finds that its consideration of such evidence is not prejudicial to the Appellant, and a remand is not necessary in this case. 38 C.F.R. §§ 19.37, 20.1304 (c) (2012). FINDINGS OF FACT 1. The Veteran died in October 2007. The certificate of death lists the immediate cause of death as lung cancer. No underlying cause of death was indicated. 2. At the time of his death, the Veteran had no service-connected disabilities. 3. The Veteran was exposed to asbestos in service. 4. The Veteran's cause of death is etiologically related to in-service asbestos exposure. CONCLUSION OF LAW Resolving all reasonable doubt in the Appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is granting the claim for service connection for the Veteran's cause of death. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran's certificate of death shows that he died in October 2007. The certificate of death lists the immediate cause of death as lung cancer. No underlying cause of death was indicated. A November 2007 letter from the Veteran's private physician shows that the Veteran developed malignant pleural effusion with cells consistent with an adenocarcinoma and private treatment records show that this was a primary lung cancer. At the time of the Veteran's death, he had no service-connected disabilities. The Appellant contends that the Veteran's cause of death was due to asbestos exposure in service. There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not 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 VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M 21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M 21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people were employed in shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come in for medical attention because the latency period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. The Board finds that the Veteran had at least some exposure to asbestos in service. Personnel records show that the Veteran served in the Navy and was stationed aboard the U.S.S. Point Cruz from June 1951 to September 1954. Historical information for the U.S.S. Point Cruz that is of record shows that the ship was recommissioned in January 1951 and was ordered into the war zone, but prior to that, the ship underwent modifications. The history indicates that anyone who worked aboard the U.S.S. Point Cruz may have been exposed to asbestos. The Veteran's DD Form 214 shows that he served as a Yeoman with a related civilian occupation of clerk-typist. The RO indicated, in the September 2008 rating decision, that the Veteran had a minimal probability of exposure to asbestos based on his military occupation. The Appellant contends, however, that the Veteran worked aboard the U.S.S. Point Cruz in 1951 while it was being overhauled and service personnel records show that he was stationed aboard the ship for three years after it was recommissioned. In a November 2011 statement, the Appellant reported that her husband was one of the few sailors who were aboard the U.S.S. Point Cruz in 1951 while it was being overhauled for the Korean War. The Appellant relayed reports from the Veteran's friends, who served with him aboard the U.S.S. Point Cruz and spoke to her after the Veteran's death. They described the presence of asbestos aboard the ship and reported that they had to shake asbestos particles from their bedding prior to a night's rest. The Appellant stated that the Veteran was always below deck for his office work, and indicated that he was generally restricted to duties below deck in service. The Appellant additionally reported that the Veteran was a non-smoker during his lifetime, and he worked as a banker. While the Appellant did not have first-hand knowledge of the conditions aboard the Veteran's ship, in a November 2007 statement, she indicated that she married the Veteran in January 1954, prior to his separation from service. Thus, the Board finds that the Appellant is competent to describe the Veteran's duties below deck in service, and the Board finds that she is competent to relay the observations more recently provided by the Veteran's fellow service members. The Board finds, additionally, that the Appellant is credible in her statements as her description of the Veteran's exposures appear to be consistent with the ship's history of being overhauled during the Veteran's period of service. Her statements are also tend to be supported by other evidence of record. In that regard, private treatment records from Lancaster General Hospital dated in September 2005 show that the Veteran reported being exposed to asbestos in the past; however, the Veteran's DD 214 shows that he worked as a banker prior to service, and a May 2004 VA treatment report shows that the Veteran was a retired banker. Thus, the Board finds that the Veteran did not have post-service occupational risks for asbestos exposure. VA treatment and private treatment records also confirm that the Veteran as a non-smoker. For these reasons, and resolving the benefit of the doubt in favor of the Appellant on this issue, the Board finds that the Veteran had at least some degree of exposure to asbestos while serving aboard U.S.S. Point Cruz. Service treatment records include an October 1952 chest x-ray, which identifies bilateral hilar and peribronchial calcification, with an impression of "healed primary complex" on an otherwise negative x-ray of the chest. The condition was marked as "NCD" (not considered disabling). Lung complaints were not otherwise indicated in service, or on an October 1954 separation examination report. The Appellant reported, in conjunction with her November 2007 claim, that the Veteran was diagnosed with lung cancer in April 2005. The earliest post-service medical evidence of a lung disability was also dated in April 2005. An August 2008 VA examiner reviewed the claims file, noting the Veteran's diagnosis of stage IV lung carcinoma, malignant pleural effusion containing cells consistent with andenocarcinoma of the lungs. The VA examiner also noted the Veteran's minimal risk of exposure to asbestos as a Yeoman, but noted that the historical background of the U.S.S. Point Cruze indicated that the ship was significant for asbestos exposure. The VA examiner stated that the Veteran's diagnosis was adenocarcinoma of the lung, but the claims file was silent for mesothelioma. She opined, therefore, that asbestos exposure was not considered relevant, and opined that adenocarcinoma of the lung would therefore not be caused by or a result of military service. The August 2008 VA examiner did not comment in-service x-ray findings significant for bilateral hilar and peribronchial calcification. Additionally, it appears that the August 2008 opinion, that asbestos exposure was not a relevant factor in determining the cause of the Veteran's lung cancer, was based solely on the Veteran's diagnosis of adenocarcinoma of the lung, rather than mesothelioma. The Board notes, however, that the M 21-1MR guidelines for service connection in asbestos-related cases identifies lung cancer in addition to mesotheliomas as diseases associated with asbestos exposure. The Board, therefore, requested a VHA medical opinion to clarify whether the Veteran's adenocarcinoma of the lung was related to asbestos exposure in service, or if it is otherwise related to x-ray findings in service. The September 2012 VHA examiner stated that the Veteran died of adenocarcinoma of the lung. He noted that asbestos exposure was known to increase the risk of developing thoracic cancers, both meotheliomas and other types of lung cancers, including adenocarcinoma. The examiner also noted that the Veteran never smoked and had no other exposures of lung carcinogens that were of record. The VHA examiner opined, therefore, that it was likely that the Veteran's lung cancer was due to asbestos exposure. The examiner reasoned that it was clear from the record that the Veteran's death was from lung cancer, and based on the record and his medical knowledge, it was reasonable to deduce that the Veteran's death and lung cancer could be due to his in-service asbestos exposure. The examiner also discussed findings from x-rays in service, stating that they were not etiologically significant or related to the Veteran's asbestos exposure. He stated that the x-ray was consistent with what is called Primary Complex, a condition related to exposure to infection from tuberculosis that results in scarring in the lungs. The examiner opined that the findings were likely present at the time of the Veteran's enlistment and were most likely due to a prior exposure to tuberculosis which was common during that period. The examiner explained that the presence of calcifications indicated that the findings were old because it took several years for calcifications to occur, and there was not enough time for the Veteran's asbestos exposure to cause the abnormalities that were noted on x-ray. While the in-service x-ray findings were stated to be not etiologically significant, the VA examiner nonetheless opined, based on the Veteran's history and presentation, that the Veteran's cause of death due to lung cancer was likely due to asbestos exposure. The Board finds that the VHA opinion is thorough, well-reasoned, and was based on an accurate factual background as well as the examiner's own medical expertise. The VHA opinion, in this case, relates the Veteran's cause of death (lung cancer) directly to his in-service asbestos exposure. The Board finds that the VHA opinion is more probative than the August 2008 VA opinion which did not address the in-service x-ray findings, and did not provide reasons and bases for determining why asbestos exposure would not be relevant to a diagnosis of adenocarcinoma of the lung. For these reasons, the Board finds that September 2012 VHA opinion has provided competent, credible, and probative medical evidence showing that the Veteran's cause of death is related to asbestos exposure in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's cause of death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the Veteran's cause of death is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs