Citation Nr: 1312441 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-09 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, Appellant's daughter, Appellant's son-in-law ATTORNEY FOR THE BOARD Shamil Patel, 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 from March 1951 to March 1955. He died in August 2004. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for the cause of the Veteran's death. A Travel Board hearing was held in July 2008 with the appellant and other witnesses in New Orleans, Louisiana, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The claim was then remanded by the Board in November 2008, September 2011, and September 2012 for further development. The Virtual VA file associated with the appellant's claim has also been reviewed as part of her appeal. FINDINGS OF FACT 1. The Veteran's death certificate indicates that he died in August 2004 at the age of 70. The immediate cause of death was lung cancer; tobacco was listed as a significant condition contributing to death but not resulting in the underlying cause of death. 2. At the time of his death, the Veteran was not service connected for any disabilities. 3. The Veteran's death was not etiologically related to service, including due to in-service exposure to asbestos. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Subsequent to the initial adjudication of the appellant's claim, a letter dated in December 2008 was sent to the appellant in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate her claim; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist her in obtaining evidence, but that it was her responsibility to provide VA with any evidence pertaining to her claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). She was also notified of the criteria for establishing an effective date and disability rating. See Dingess. In the context of a DIC claim, section 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). In this case, the Veteran was not service connected for any conditions, and the December 2008 letter satisfied the remaining notice elements. Here, the duty to notify was not satisfied prior to the initial decision on the appellant's claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead 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) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the December 2008 letter that addressed all notice elements. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the claim was then readjudicated by way of an SSOC in March 2009, after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). B. Duty to Assist The Veteran's service treatment records, personnel records, and private treatment records have been associated with the claims file, along with the appellant's lay statements and hearing transcript. Notably, VA has not obtained a medical opinion which addresses the appellant's claim. In Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) made clear that § 5103A(d) does not apply to DIC claims. Rather, § 5103A(a) applies. Section 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. As discussed below, the evidence does not reflect any relevant findings from service, and the overall weight of the evidence is against a finding that the Veteran was exposed to asbestos during service. Therefore, an opinion in this case would not aid in substantiating the claim. Pursuant to the Board's September 2012 remand, the appellant was to be notified of evidence identified by the National Air and Space Museum (NASM) and afforded an opportunity to obtain that evidence. A letter to that effect was sent to the appellant in September 2012. The appellant submitted an October 2012 response indicating that she was unable to obtain the identified materials, and that she had no further evidence to submit. Therefore, the directives of the prior remand have been satisfied. Stegall v. West, 11 Vet. App. 268 (1998). VA has provided the appellant with the opportunity to submit evidence and argument in support of her claim. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Finally, as noted above, the appellant was afforded a hearing before the undersigned VLJ during which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issue on appeal at the onset of the hearing. Although the VLJ did not suggest the submission of any evidence that may have been overlooked, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. In addition, the claim was thereafter remanded on two occasions to obtain evidence that may have been overlooked. As such, the Board finds that, any failure to comply with the duties set forth in 38 C.F.R. § 3.103(c)(2) is nonprejudicial to the appellant. Service Connection for Cause of Death A. Applicable Law 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). This determination will be made by exercising sound judgment, without recourse to speculation, after a careful analysis of all the facts and circumstances surrounding the death, including, particularly, autopsy reports. Id. 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) (2012). 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) (2012). 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) (2012). It is not sufficient to show that it casually shared in producing death, but rather it must be shown there was a causal connection. 38 C.F.R. § 3.312(c). See, e.g., Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992) (addressing requirements for consideration of disabilities attributable to service as contributory, as well as direct cause of death in DIC claims). See also Mattern v. West, 12 Vet. App. 222, 227-28 (1999). 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. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). B. Evidence and Analysis The Veteran's death certificate indicates that he died in August 2004 at the age of 70. The immediate cause of death was lung cancer. Tobacco was listed as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of his death, the Veteran was not service connected for any disabilities. The appellant seeks service connection for the cause of the Veteran's death. She contends that he was exposed to asbestos in service and that his death is related to that exposure. She believes that the Veteran died of a form of asbestosis that developed into lung cancer. In essence, she contends that the exposure to asbestos was a contributing factor to the Veteran's fatal lung cancer. With asbestos related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(h). VA must also ensure that proper development of the evidence is accomplished to determine whether or not there is pre-service and/or post- service asbestos exposure. Id. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part VI, Subpart ii, Chapter 2, § C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos-related claim. See VAOPGCPREC 4-2000. Asbestos exposure is a fact to be determined from the evidence and is not an issue to be resolved by operation of any presumption. Dyment v. Principi, 287 F.3d 1377, 1384 (Fed. Cir. 2002). Service department records confirm the Veteran's service as a turret systems mechanic and gunner for B-36 bombers while in the Air Force. A fact sheet regarding the B-36 aircraft was also associated with the claims file. However, these materials do not contain any reference to asbestos exposure in service. The RO contacted the National Museum of the United States Air Force who in turn referred the RO to the NASM to obtain copies of relevant technical orders to determine the principal manufacturers of components and products relative to the presence of asbestos in the turret of the B-36 planes. The RO then contacted the NASM, stating that the United States Air Force had suggested that the RO acquire copies of the relevant technical orders because the best evidence that products containing asbestos may have been used on an airframe that could be found in the listing of "principal manufacturers of components and products found in the aircrafts' Illustrated Part and Breakdown Technical Orders (-4 Series)." In response, in December 2011, the NASM stated that it was unclear which model B-36 was involved and provided a list of all parts catalogs that could be ordered, as well as manuals which could also be ordered. The NASM also indicated that as of the next month, January 2012, the paper reproduction would be available. The acquisition of these materials, however, was costly. As noted above, the appellant stated that she was unable to obtain the catalogs and manuals identified by the NASM. With respect to the medical and lay evidence, service treatment records do not reflect any complaints, treatment, or diagnoses related to asbestos exposure or a lung condition in service. The Veteran underwent examinations in March 1951, November 1952 and March 1955. No relevant abnormalities were noted. An examination of the chest in January 1956 did not find any disease. X-rays were normal. A perfusion lung scan in October 1990 was also normal. Beginning in 2004, the Veteran sought treatment for lung-related issues. He originally presented with right-sided pneumonia. A subsequent bronchoscopy showed a poorly differentiated carcinoma in the right middle lobe. Private treatment records dated July 2004 show the Veteran was diagnosed with testicular cancer with pulmonary metastasis and recurrent pleural effusion. Notably, a cytology report noted a focal accumulation of mesothelial cells. He was later diagnosed with a stage IV non-small cell lung carcinoma of the right lung. He was noted to have smoked more than 2 packs per day for over 50 years. Despite treatment and supportive measures, the Veteran's condition continued to decline. Aggressive measures were discontinued, and he was discharged to his home for hospice care in the beginning of August 2004. He passed away shortly thereafter. A February 2005 letter from the Veteran's treating physician noted additional diagnoses of coronary artery disease, chronic obstructive pulmonary disease, and peripheral vascular disease. At a July 2008 Board hearing, the appellant testified that the Veteran was not exposed to asbestos after his separation from service. She stated that he had experienced prior problems with his sinuses, and was told by one of his doctors that his problems probably all started back when he inhaled something. Based on the evidence, the Board finds that service connection for the cause of the Veteran's death is not warranted. The available service records do not confirm that the Veteran was exposed to asbestos during his time in the military. While there is some evidence of the presence of mesothelial cells in a July 2004 lab test, the medical evidence dated from service through August 2004 also does not contain any diagnoses of mesothelioma, asbestosis or an asbestos-related lung disability. Rather, the available records reflect that the Veteran had testicular cancer which metastasized and led to the lung cancer which caused his death. Lung cancer was first diagnosed many years after service. There is no competent evidence of record showing that the Veteran's fatal lung cancer had its onset during active service or is related to any in-service disease, event, or injury. The Board has considered the appellant's own statements made in support of her claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the etiology of lung cancer, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, although her testimony has been considered, it is not competent evidence of a link between the Veteran's cause of death and service. And while the appellant testified that a doctor stated that "it all started back then when he inhaled something," as noted above, the evidence does not show that the Veteran was exposed to asbestos during service. The preponderance of the evidence is against finding that the Veteran's cause of death is etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs