Citation Nr: 1320273 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-41 307 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and N.B. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran (the Veteran) who died in May 2008, and who served on active duty in the U.S. Navy from January 1944 to January 1946. The Veteran also had a subsequent unverified period of service in the U.S. Army, which ended in July 1955. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the RO in Cleveland, Ohio. In May 2013, the appellant presented testimony at the RO at a Board hearing chaired via videoconference by the undersigned Veterans Law Judge, who was seated in Washington, D.C. A witness, N.B., was also present, but did not testify. The appellant accepted a videoconference hearing in lieu of an in-person hearing. See 38 C.F.R. § 20.700(e) (2012). A transcript of the hearing is associated with the claims file. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. 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. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The metastatic large cell carcinoma of the lung that caused the Veteran's death is not related to service. CONCLUSION OF LAW The cause of the Veteran's death was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1312, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking DIC benefits based on her assertion that the cause of the Veteran's death is related to service and therefore qualifies as a service-connected disability. The Veteran's death certificate lists the official cause of death as metastatic large cell carcinoma of the lung, which had onset eight months prior to death. The appellant contends that the metastatic large cell carcinoma of the lung which caused the Veteran's death is related to asbestos exposure during his World War II service. Dependency and Indemnity Compensation (DIC) 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 (West 2002); 38 C.F.R. § 3.5 (2012). A disability may be service connected if it results from an injury or disease incurred in, or aggravated by, military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. 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. 38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the metastatic large cell carcinoma of the lung listed on the death certificate is the actual cause of the Veteran's death. As will be addressed in greater detail below, this was confirmed by two VA clinicians offering opinions on the matter. There is no medical evidence asserting any other cause of death, either direct or contributory. While the appellant's representative has asserted that the Veteran may have had pleural thickening of the lungs, which he believes was a result of asbestos exposure, neither he nor the appellant has asserted that the pleural thickening was the cause of death. The contention of the representative is that the pleural thickening was evidence of asbestos exposure, and that the asbestos exposure caused the metastatic large cell carcinoma of the lung, which was the ultimate cause of death. Thus, the etiology of the Veteran's metastatic large cell carcinoma of the lung is the essential determination in this case. Available service treatment records do not reflect any complaint or treatment during the Veteran's naval service regarding the respiratory system. When examined for separation from the Veteran's period of naval service in January 1946, the Veteran's respiratory system, bronchi, lungs, and pleura were found to be clinically normal. A chest X-ray was also normal. Indeed, the death certificate places the onset of the disability at eight months prior to the Veteran's death, not in service. Presumptive service connection under 38 C.F.R. §§ 3.307, 3.309 is available for malignant tumors shown within one year of service, but the Veteran's lung cancer was not diagnosed until decades after service. As for the provisions regarding continuity of symptomatology under 38 C.F.R. § 3.303(b), there were no allegations from the Veteran during his lifetime that he began experiencing respiratory symptoms during service which continued thereafter. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no specific statutory guidance with regard to asbestos-related claims, nor has VA 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 MR, Part VI, 7.21. The CAVC has held that VA must analyze an appellant's claim to entitlement to service connection for 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 MR, 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. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the CAVC found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1 MR, 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. VA O.G.C. Prec. Op. No. 04-00. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2012). The RO has determined that there is a "probable likelihood" of exposure to asbestos during the Veteran's naval service. The Board accepts the RO's characterization as a finding that the evidence in favor of exposure has reached an approximate balance with the evidence against exposure. Resolving any reasonable doubt in the appellant's favor, the Board finds that asbestos exposure is substantiated. Having established that the cause of the Veteran's death was metastatic large cell carcinoma of the lung, and that the Veteran was exposed to asbestos during his service, the Board turns to the question of nexus. At the time of the Veteran's death, service connection was not in effect for any disability. Therefore, in order to obtain DIC benefits based on a service-connected cause of death, it must first be established that the metastatic large cell carcinoma of the lung that caused the Veteran's death is etiologically related to service, to include exposure to asbestos in service. The evidence regarding nexus consists of two medical opinions obtained by VA in developing the current DIC claim. An April 8, 2009 report, based on a records review, includes the opinion that the Veteran's lung cancer is less likely as not caused by or the result of asbestosis and is more likely caused by his smoking. The principal rationale for the clinician's opinion is that the Veteran did not have typical lung findings on radiologic and imaging studies. There was no evidence of pleural disease with focal and diffuse benign pleural plaques or malignant mesothelioma, which the clinician noted has a high association with asbestos. According to the clinician, the typical pattern with asbestosis is that the malignancies seen are non-small cell and small cell carcinoma of the lung, as well as malignant mesothelioma and pleural plaques. In such cases, the lungs show fibrosis and pleural plaques and have restrictive lung disease changes. In contrast to the typical asbestos-related pattern, the Veteran's chest CT scan showed emphysematous changes and spiculated lesions within the posterior segment of the left upper lobe, which had shown interval decrease, probably due to chemotherapy. Also noted were precarinal middle mediastinal lymph nodes and also enlarged lower right paratracheal middle mediastinal nodes. According to the VA clinician, the Veteran's records do not show pleural plaques and fibrosis. There is also no mention of recovery of asbestos fibers or bodies in the bronchioalveolar lavage or the lung tissue, and there is no evidence of interstitial fibrosis on the CT scan. While the April 8, 2009 VA clinician acknowledged that exposure to asbestos does increase the risk of malignancy and lung function abnormalities, he also noted that cigarette smoking is associated with an even larger increase in risk. He found it significant that the Veteran was a smoker and smoked 1/2 pack per day for 40 years and only quit smoking in October 2007. The April 8, 2009 VA clinician also noted that the Veteran's asbestos exposure was in 1940s, more than 60 years before the onset of malignancy, which he found was somewhat unusual for asbestosis. According to the VA clinician, more commonly, asbestos-related malignancies are found to occur in 15 to 30 year time frame. The Board notes that the clinician's finding is generally consistent with the guidelines set out above, which establish the latency period for asbestos-related diseases as between 10-45 years or more between first exposure and development of disease. While the guidelines support a higher latency period than the clinician's finding, they do not suggest that the clinician's specific finding regarding the more than 60 years demonstrated in this case is invalid. A supplemental opinion was obtained on April 28, 2009, following the submission of additional treatment records from the appellant. A different VA clinician reviewed the file, including the additional records, and opined that the Veteran's death from lung cancer was less likely as not caused by or the result of asbestos exposure while in service. In providing a rationale for his opinion, the April 28, 2009 VA clinician noted that asbestos exposure is associated with several clear pathognomic lung disorders, as have been cited in various medical articles. According to the clinician, the hallmark of asbestos exposure is interstitial lung disease with pleural involvement; it can appear as a ground glass appearance on X-ray, which is not indicated in this case. It also sometimes presents with honeycombing and pleural plaques on imaging studies. The clinician noted that the diagnostic criteria of asbestos exposure are a reliable history of asbestos exposure, evidence of fibrosis and/or inspiratory crackles with decreased lung volume or decreased DLCO, histo-logical evidence of fibrosis of the lung parenchyma, and no other causes of diffuse parenchymal lung disease. The clinician's review of the record revealed no mention of asbestos lesions involving either the pleura or evidence of mesothelioma. There is also no mention of fibrosis or restrictive lung disease. A chest CT indicated emphysema with mediastinal and other lymph-adenopathy. There is also a cited history of 20-pack year of tobacco smoking, with only a probable likelihood of asbestos exposure while in service with the Navy. The Board acknowledges the assertion of the appellant's representative at the hearing that a May 13, 2008 chest X-ray revealed minimal pleural thickening bilaterally, and that pleural thickening is "one of the most significant findings for exposure to asbestos." To the extent the representative asserts that this finding contradicts the findings of the VA clinicians, the Board finds that it does not. Both VA clinicians found that there were no pleural plaques. The April 8, 2009 VA clinician noted no evidence of pleural disease with focal and diffuse benign pleural plaques or malignant mesothelioma. The April 28, 2009 VA clinician found no asbestos lesions involving the pleura. Neither clinician found that there was no pleural thickening. To the extent that the representative disagrees with the VA clinicians as to the significance of pleural thickening, he has not identified any expertise in medical matters. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, establishing 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). The appellant's representative also noted that a September 2007 cryptology report found poorly differentiated large cell carcinoma, which favors poorly differentiated squamous carcinoma. He asserted that these findings are indicative of a positive evidence of exposure to asbestos. The Board simply notes that exposure to asbestos has been acknowledged. Neither VA clinician found against such exposure. They each found that, in their medical opinion, the Veteran's lung cancer was not related to asbestos exposure. The Board also acknowledges correspondence from N.B. received in March 2010. N.B. was also present at the Board hearing but did not testify. The appellant's representative at one point referred to N.B. as "Dr. [B]." However, N.B. has never identified himself as a medical professional, and notably did not sign the March 2010 letter with M.D. or any other designation of a medical professional. Among the pertinent assertions made by N.B. are that non-small cell and small cell carcinoma can be seen in asbestos-exposed individuals and that some of the harsh chemicals to which the Veteran was exposed during service could have been potentially carcinogenic. To the extent these statements are offered as medical opinions, they are inconclusively stated. The CAVC has repeatedly and consistently rejected medical opinions raising only a possibility of medical nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In essence, a medical opinion that is not conclusively stated, but asserts only the possibility of a relationship, is not probative evidence, or evidence that tends to prove the question at hand. The Board notes that, prior to his death, the Veteran enrolled in the VA Healthcare System. A letter from the Veteran dated in March 2005 expressed his disagreement with a determination of the enrollment coordinator that he should be placed in Priority Group 8 (nonservice-connected veterans), and he noted his service in the Navy and exposure to "various chemical toxins." However, there is no medical opinion that purports to relate the Veteran's metastatic large cell carcinoma of the lung to exposure to any chemicals or fuel oil in service. To the extent that the statement of N.B. was intended to be a medical opinion, the inconclusive nature of the assertion does not allow the Board to attach any probative weight to it. The medical opinion evidence in this case is consistent and it weighs against the claim. The appellant obviously believes that there is a relationship between the Veteran's asbestos and/or chemical exposure in service and the lung cancer that resulted in his death; however, as noted above, establishing the etiology of cancer is not capable of lay observation, but requires medical knowledge. Finally, the Board acknowledges the assertion of N.B. in correspondence received in March 2010 that the VA opinions in this case do not state "definitively or definitely" that the Veteran's lung cancer was not caused by asbestos exposure and use the terminology "less likely as not." The Board notes that, while a speculative medical opinion is not probative evidence, medical opinion evidence does not require absolute certainty on the part of a clinician. In fact, medical opinions are requested to use terminology that maps the legal standard of proof for VA claims. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, opinions are requested as to whether it is at least as likely as not that the asserted relationship is medically supported. In this case, both clinicians found that there was not an approximate balance of the evidence, but that the asserted relationship was less than as likely as not. In other words, a preponderance of the evidence is against the asserted relationship. As the Board has found that the preponderance of the evidence is against a relationship between the metastatic large cell carcinoma of the lung that caused the Veteran's death and his service, the Board concludes that service connection for the cause of the Veteran's death is not warranted, and therefore DIC is not warranted. In making the above findings and in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the appellant submitted her claim for DIC in August 2008. The RO sent her a letter in August 2008 which advised her of the information and evidence necessary to substantiate the claim, including the information specified in Hupp. That letter also advised her as to how disability ratings and effective dates were assigned in the event of a successful claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the August 2008 letter was sent prior to the initial adjudication of the claim in May 2009, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). After she perfected her appeal, another letter was sent to the appellant in March 2010, again informing her what evidence was needed to substantiate her claim. In short, VA has complied with its duty to notify in this case. When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the Veterans Law Judge explained that the basis for the RO's denial of the claim was that a medical opinion had been obtained based on a review of the claims file and that opinion was against any relationship between the lung cancer that caused the Veteran's death and exposure to asbestos in service. The Veterans Law Judge specifically informed the appellant that, "what's missing from the case at this point in time is a medical opinion that links the asbestos exposure to the cancer that caused [the Veteran's] death." The appellant was explicitly asked whether any doctors had given a positive opinion in this matter, and she replied, "no." so there is no indication that additional relevant evidence exists that has not been obtained. Such actions supplement the VCAA notice and comply with 38 C.F.R. § 3.103. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records from his period of active duty with the U.S. Navy, as well as post-service VA treatment records, and the appellant's written assertions and personal hearing testimony. The RO requested the service treatment records for the Veteran's second period of service in the U.S. Army from the National Personnel Records Center (NPRC), but the NPRC indicated that the records had likely been destroyed in the 1973 fire at that facility. In these circumstances, when a portion of a veteran's service treatment records are unavailable, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, the Board finds that there is no prejudice to the claim resulting from the lack of the Veteran's Army records. In fact, the appellant contends that the Veteran's exposure to asbestos occurred during his naval service, and VA has already conceded asbestos exposure. The service treatment records from the Veteran's first period of service in the Navy were located and are of record. They include his induction examination, separation examination, treatment records and dental records. There is no assertion on the appellant's part that the cause of the Veteran's death is related to his Army service in any way, or that the Veteran experienced any relevant symptoms during his Army service. The Board notes that 38 U.S.C.A. § 5103A(d) concerning obtaining VA medical examination or medical opinion is limited to claims for "disability compensation." See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In DeLaRosa at 1322, n.1, the Federal Circuit explained that disability compensation is defined as a "monthly payment made by VA to a veteran 'if the veteran is disabled as a result of a personal injury or disease . . . while in active service if the injury or disease was incurred or aggravated in line of duty.'" Therefore, by definition, § 5103A(d) does not pertain to a DIC claim. Nevertheless, in a DIC case, as part of the duty to assist, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). According to the Federal Circuit, this requirement obligates VA to assess whether it is necessary to obtain a medical opinion in order to substantiate the appellant's claim. Id. VA is only excused from making reasonable efforts to provide assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). In this case, the RO obtained a medical opinion based on a file review on April 8, 2009, and obtained an addendum opinion later that month, after additional records had been added to the claims file. The Board finds that the VA opinions are adequate to evaluate the merits of the appeal, as they address directly the pertinent questions, they reflect a knowledge and understanding of the pertinent evidence, and each is accompanied by a rationale that is consistent with the record. The Board acknowledges that the appellant's representative has asserted that the VA opinions are inadequate as they do not address the assertion of the appellant that the Veteran was exposed to chemicals while serving in the Navy. The Board notes that, prior to his death, the Veteran had asserted to VA that he was exposed to various chemical toxins during his service (see March 2005 correspondence to the Veterans Health Administration); however, the Veteran was never specific about what chemical toxins he was exposed to. The appellant has also not identified any specific chemical that the Veteran was exposed to. A letter from N.B. asks the Board to request a definitive list from the Navy as to all ship-board chemicals used for cleaning, painting, and other uses. The Board finds that, as the Veteran himself did not know or describe the type of chemicals he was exposed to, or the type, extent, or duration of such exposure, a blanket request for a list of all chemicals possibly used aboard ships followed by a request for a medical opinion based on such a list would ultimately result in a speculative or inconclusive opinion, which would be of no probative value. See Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly support a claim). The term "chemical" is far too broad to expect a non-speculative medical opinion regarding causation of the disease at issue here. The Board finds that there is no reasonable possibility that a medical opinion based essentially on a guess as to actual chemical exposure would be of any probative value. VA is not required to provide assistance if no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2) (West 2002); see also 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is no reasonable possibility that further assistance would substantiate the claim). Thus, the Board finds that the duty to assist has been met in this case. ORDER DIC based on service connection for the cause of death of a veteran is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs