Citation Nr: 1320724	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  09-48 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active military service from May 1966 to February 1970.  He died in January 1997, and the appellant is his surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. The Veteran died in January 1997.  His death certificate lists the immediate cause of death as pneumonia due to oat cell carcinoma of the lung with metastases. 

2. At the time of the Veteran's death, he had no service-connected disabilities.

3. The Veteran was exposed to asbestos while serving aboard the USS Leader and USS Loyalty.  

4. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran's oat cell lung cancer was caused by exposure to asbestos while on active duty. 


CONCLUSION OF LAW

The criteria for establishing service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends that the Veteran's death from lung cancer was caused by exposure to asbestos during his period of active military service.  Having carefully considered the appellant's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis.  38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown , 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).

The benefit of the doubt rule provides that a claimant will prevail in a case where the positive evidence is in a relative balance with the negative evidence.  Therefore, a claimant prevails when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a claim that the claim must be denied.  38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death."  38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria for establishing service connection).  A service-connected disability is the principal cause of death when that disability, "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) .

For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death.  38 C.F.R. § 3.312.

Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature.  Id. 

At the time of the Veteran's death, he had no service-connected disabilities.  The appellant contends that the Veteran's small cell lung cancer (also known as oat cell lung cancer) was caused by his exposure to asbestos during his period of active duty.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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 for certain diseases.  38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  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).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

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) provides guidelines for considering compensation claims based on exposure to asbestos.  See VA Adjudication Procedure Manual, M21-1 MR, Part IV.ii.2.C.9 (September 29, 2006).  VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines.  See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993).  

The manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease.  A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  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.  Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer.  

The manual lists some of the major occupations involving exposure to asbestos, including 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, and military equipment.  

In short, with respect to claims involving asbestos exposure, VA must first determine whether military records demonstrate evidence of asbestos exposure during service and develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure.  Then, it must determine whether there is a relationship between asbestos exposure and the claimed disease.  M21-1 MR, Part IV.ii.1.H.29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  

There is no presumption that a Veteran was exposed to asbestos in service by reason of having been on a ship.  Dyment v. West, 13 Vet. App. 141 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (April 13, 2000).  Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.

The Veteran's service personnel records show that he served aboard two minesweepers: the USS Leader (MSO 490) and the USS Loyalty (MSO 457).  The appellant asserts that the Veteran was exposed to asbestos because he lived aboard these ships.  The service personnel records also show that he was assigned to Joint Task Force 8 and stationed at the Johnston Atoll.  The Board notes that both the USS Leader and the USS Loyalty contained asbestos; this was noted when the ships were decommissioned.  The Veteran was exposed to asbestos during service. 

The appellant submitted a July 2003 opinion from Dr. R. K., a private physician.  Dr. R. K. reviewed the pathology reports used to diagnose the Veteran's lung cancer, the report of a bronchoscopy he underwent in May 1996, the results of his chest x-rays and CT scan, and a copy of his death certificate.  Dr. R. K. found that the Veteran had "significant occupational exposure to asbestos" that was of sufficient magnitude and latency to account for "any of the asbestos related diseases."  Although the Veteran smoked cigarettes, Dr. R. K. noted that his smoking history was not delineated in the records he reviewed.  He found that the Veteran was diagnosed with small cell lung cancer in May 1996 and that he died of this condition in January 1997.  Dr. R. K. concluded, "[b]ased on my review of the records ... supplied, I conclude that [the Veteran] suffered from an asbestos related lung cancer."  The Board finds that Dr. R. K.'s opinion provides probative evidence in favor of the appellant's claim.  

In December 2009, Dr. R. E., a private physician, submitted a statement in support of the appellant's claim.  Dr. R. E. stated that the Veteran worked aboard two minesweepers that contained asbestos.  He subsequently worked as a pipefitter and was trained in asbestos abatement (asbestos removal, encapsulation, and/or enclosure).  Dr. R. E. concluded that the Veteran was exposed to asbestos in service.  He noted that the Veteran died of "oat cell lung cancer," which is also known as small cell lung cancer, and he concluded that it "could be" caused by asbestos.  He concluded that "...it is possible that [the Veteran] had occupational and military asbestos lung cancer."  Speculative language such as "could be" and "it is possible that" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993).  Therefore, Dr. R. E.'s statement is not probative evidence in support of the appellant's claim.  

There are no negative medical opinions of record.  There is no evidence of any other intercurrent cause for the Veteran's small cell lung cancer. The Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted.  It is not permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  The Board finds Dr. R. K.'s opinion to be highly probative and finds that the Veteran's small cell lung cancer was caused by his exposure to asbestos.  The remaining question in this case is whether his military or post-service asbestos exposure was the cause of his lung cancer. 

After leaving service, the Veteran worked in various jobs that did not expose him to asbestos.  However, the Board acknowledges that in approximately 1981, the Veteran began to work as a pipefitter, and he worked in that capacity until 1996.  Although he was exposed to asbestos in this job, he had earned certificates of asbestos training and was accredited in asbestos abatement.  He wore protective gear when working with asbestos as a pipefitter post-service.  

The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  M21-1 MR at IV.ii.2.C.9.d.  Affording the appellant the benefit of the doubt, the Board finds that the Veteran's military exposure to asbestos, rather than his work as a pipefitter from 1981 to 1996, was the cause of his lung cancer.  His exposure during his period of active service from May 1966 to February 1970 is more in line with the lengthier latency period set forth in the manual.  Further, he wore protective gear during his post-service employment.  

Although further medical inquiry could be undertaken towards development of the claim, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance.  The preponderance of the evidence is in the appellant's favor, the benefit of the doubt rule will therefore be applied.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993).

Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the appellant.  See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).

ORDER

Service connection for the cause of the Veteran's death is granted.  



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs