Citation Nr: 1319173 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 10-17 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from March 1943 to March 1946. He died in February 2009. The appellant is advancing her appeal as the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in November 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by taking appropriate action to obtain final hospitalization records, taking appropriate action to develop evidence of asbestos exposure, providing a VA examination, and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDINGS OF FACT 1. The Veteran died in February 2009; the death certificate lists respiratory failure, due to congestive heart failure, due to pulmonary fibrosis; hypertension and hypercholesterolemia were listed as other significant conditions contributing to death. 2. The Veteran was not service-connected for any disability. 3. The disabilities that caused the Veteran's death were not manifested during the Veteran's military service or for many years thereafter, nor were they otherwise related to the Veteran's service. CONCLUSION OF LAW The Veteran's death was not caused by or substantially or materially contributed to by a disability incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2009. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Hupp v. Nicholson, 20 Vet. App. 1, informing her of the requirements of a claim for cause of death. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service treatment records, reviewed Virtual VA files, offered assistance to the appellant in obtaining evidence, and obtained a VA medical opinion in April 2013. The appellant did not respond to a request to complete release forms to allow VA to obtain medical records of the Veteran's final hospitalization. In a statement received in May 2013, the appellant's representative stated that there was no additional evidence to submit and asked that the Board proceed with appellate review. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the appellant and her representative have not contended otherwise. VA has complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The Veteran's death certificate reveals that he died of respiratory failure, due to congestive heart failure, due to pulmonary fibrosis. Hypertension and hypercholesterolemia were listed as other significant conditions contributing to death. The Veteran's Notice of Separation from U.S. Naval Service shows that he was an Apprentice Seaman, Seaman 2nd Class, and Seaman 1st Class. In a claim of service connection for the cause of the veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2006). Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular disease and hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Regarding asbestos exposure, the Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. 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 have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease 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. See M21-1, part VI, para. 7.21(a)(1). The Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are 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. M21-1, part VI, para. 7.21(d)(1). Analysis The Board first finds that any lung disability, heart disability, hypertension and hypercholesterolemia were not manifested during the Veteran's service. Service treatment records are silent for any complaints, treatments or diagnosis of any of the aforementioned disabilities. A March 1946 separation examination shows that the respiratory and cardiovascular systems were normal. There were no indications of hypertension and high cholesterol. The only post service treatment record associated with the Veteran's claims file is from Muhammad Kashlan, M.D., F.C.C.P., D.A.B.S.M. In a March 2010 letter, Dr. Kashlan stated that he had treated the Veteran for pulmonary fibrosis from April 2008 to February 2009. While not determinative by itself, it is significant that there is no evidence of pulmonary fibrosis for approximately 60 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, there is no post service treatment record showing treatment for cardiovascular disability, hypertension or hypercholesterolemia. Thus, the one-year presumption of in-service incurrence for cardiovascular disability and hypertension in not for application. As for the asbestos claim, M21-1, notes that in World War II, several million U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. A January 1943 entrance examination and a March 1946 note of separation altogether show that he worked for Chrysler Corporation as an assembler spot welding parts for aircraft. His death certificate notes that his usual occupation was construction. However, on substantive appeal received in April 2010, the Veteran's wife stated that he did not work as a spot welder, and rather than working in construction, he worked in real estate. Dr. Kashlan stated in March 2009 that the Veteran was under his care for "pulmonary fibrosis which could be related to previous Asbestos exposure." Emphasis added. It appears to the Board that the opinion is purely speculative. Using the term "could," without supporting clinical data or other rationale renders the opinion too speculative in order to provide the degree of certainty required for medical nexus evidence. Bloom v. West, 12 Vet. App. 185 (1999). In a statement received in April 2010, the appellant stated that the VA erred when it had quoted Dr. Kashlan and asserted that Dr. Kashlan had written, "My Danaher was under my care for pulmonary fibrosis RELATED to asbestosis [sic]." A review of the record shows no such notation. In April 2013, a VA examiner reviewed the Veteran's claims file and opined that the Veteran's death was less likely than not linked to asbestos exposure in service rather than any other etiology (including any exposure to asbestos outside of service). The VA examiner explained that there is no objective evidence of proved asbestos exposure of the Veteran during active service, and there is no radiological or pathological evidence of asbestos exposure in available medical records. The Board affords more weight to the April 2013 VA opinion than to the statements contained in Dr. Kashlan's opinion. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Again, Dr. Kashlan's one sentence statement was couched in language which renders the opinion speculative. The Board also notes that another letter from Dr. Kashlan is to the effect that he treated the Veteran for approximately the last year of the Veteran's life, some 60 years after the Veteran's service. Thus, there is no information from Dr. Kashlan as to the development of the Veteran's pulmonary fibrosis which suggests any link to service. For the reasons set forth above, the Board finds that the opinion rendered in the April 2013 VA examination report is more probative than Dr. Kashlan's opinion. The Board acknowledges the appellant assertion that asbestos exposure is related to the Veteran's cause of death. While she is competent to report her husband's symptoms, she is not competent to render a medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against her claim. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs