Citation Nr: 1320882 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-04 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1953 to April 1972. The Veteran passed away on December [redacted], 2006; the appellant in this case is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for cause of death. The appellant timely appealed that decision. 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 passed away on December [redacted], 2006 due to stage IV non-small cell lung cancer. 2. The Veteran was exposed to asbestos during military service as a boilerman and fireman; he also additionally had 24 years of post-service occupational asbestos exposure. 3. The evidence is in equipoise with regards to whether the Veteran's lung cancer was caused by his in-service asbestos exposure. CONCLUSION OF LAW The criteria for establishing service connection for cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.307, 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), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable decision, discussed below, as to the issue of service connection for cause of the Veteran's death, no further discussion as to VCAA is required at this time. This decision represents a fully favorable grant of benefits sought on appeal. Analysis To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related to death. For a service-connected disability to constitute a contributory cause, 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 (West 2002); 38 C.F.R. § 3.312 (2012); see also Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992); Ventigan v. Brown, 9 Vet. App. 34, 36 (1996). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and malignant, brain, spinal cord, or peripheral nerve tumors becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). On appeal, the appellant contends that the Veteran's cause of death is related to his asbestos exposure during military service. The Veteran's death certificate demonstrates that he expired on December [redacted], 2006 due to stage IV non-small cell lung cancer. Other noted diseases which contributed to but did not result in the ultimate underlying cause of death were: chronic obstructive pulmonary disease (COPD), atrial fibrillation, coronary disease, and a history of Hodgkin's disease and rectal cancer. The Veteran was not service connected for any disabilities at the time of his death. The Veteran served in the United States Navy from March 1953 to November 1961 and from August 1967 to April 1972. During the period of service from March 1953 to February 1956, the Veteran's service personnel records show he had military occupational specialty as a boilerman. Personnel records indicate that during subsequent military service from 1956 to 1961 and from 1967 to 1972 the Veteran's military occupational specialty was an employment interviewer and a fireman, respectively. Accordingly, the Board concedes in-service asbestos exposure, especially during the Veteran's military occupation as a boilermaker in the Navy. See 38 U.S.C.A. § 1154(a) (West 2002). His service treatment records, however, are silent for asbestos exposure or any resultant respiratory distress/disorder. Prior to the Veteran's death, an April 1999 letter from treating physician, Dr. D.A.S., found the Veteran was exposed to asbestos while working in the Newport News shipyard between 1972 and 1976 and while working at Weyerhaeuser between 1976 and 1996 as a instrument repair operator and a boilermaker. The Veteran removed asbestos frequently and was exposed to asbestos. He was also a former cigarette smoker who smoked a pack to a pack and a half a day from 1950 to 1998. Dr. D.A.S. concluded the Veteran had asbestosis and COPD associated with restrictive lung function, abnormal gas exchange and airflow obstruction. A June 2002 letter from Dr. A.L.F. also noted the Veteran's post-service employment and cigarette smoking history. Dr. A.L.F. referred to an x-ray evaluation which noted "category 1 set of changes of small irregular opacities labeled t/t" was consistent with occupational exposure to asbestos. Dr. A.L.F. also stated there was also evidence of some restrictive lung disease from the Veteran's pulmonary functioning testing. Dr. A.L.F. concluded that the Veteran had developed asbestos-related diseases and opined, "I believe his occupational exposure to asbestos resulted in his developing asbestosis." In September 2004, Dr. A.L.F. stated that since June 2002 the Veteran developed a lesion in his chest and in April 2004, he was diagnosed with squamous cell carcinoma of the lung. Dr. A.L.F. opined the Veteran's lung cancer was caused by his exposure to asbestos in conjunction with his cigarette smoking and that "while it is true that asbestos and cigarettes, independently can cause lung cancer, the scientific literature also include documents that the addition of asbestos on top of cigarette smoking greatly increased the risk of developing lung cancer, far beyond that of cigarette smoking alone." Finally, in May 2011, a VA examiner stated there was "no definitive evidence that the [V]eteran had asbestosis. Asbestosis is not mentioned as a contributing cause of death on the certificate." The VA examiner noted that while the Veteran underwent extensive medical evaluation and treatment in the years prior to his death, there was no evidence that his treating physicians associated asbestosis was the cause of his lung cancer. While the Veteran had multiple biopsies of pleural fluid and pleura, no evidence of asbestosis was shown. Radiographic studies were also not consistent with asbestosis. The VA examiner noted the Veteran's "exposure to asbestos in the military is conjectural" and that he may have been exposed at his post-service employment. Therefore, the VA examiner was unable to relate to Veteran's death to possible military asbestos exposure in the military. The appellant asserts that the Veteran's primary asbestos exposure came from his military service, which she believes caused him to develop his terminal lung cancer. Given the conflicting opinions, particularly regarding the diagnosis of asbestosis and whether the Veteran's in-service asbestos exposure or some other post-service exposure or his history of cigarette smoking caused his lung cancer, the Board determined that a Veterans Hospital Administration (VHA) opinion was necessary to resolve some of the conflicts. Such an opinion was obtained in March 2013. That VHA examiner rendered an opinion as follows: I think that it is as likely as not that the Veteran had asbestosis. He was exposed to asbestos in his service as a boilerman in the Navy from March 1956 to February 1972; this is per [the] Veteran's service personnel records. He was also exposed to asbestos in his civilian jobs in Newport News shipyard between 1972 and 1976 and at Weyerhaeuser between 1976 and 1996. He worked as [an] instrument repair operator and boilerman [a] Weyerhaeuser. He had exposure to asbestos during these jobs. This is per an April 1999 letter from the treating physician, Dr. D.A.S. The combined exposure to asbestos during these periods may have caused asbestosis. Also Dr. D.A.S. concluded that the Veteran had asbestosis and COPD associated with restrictive lung function, abnormal gas exchange and airflow limitation. Overall, it is as likely as not that any diagnosed asbestosis was casually related to conceded asbestos exposure during military service and to his post-service occupational exposure. Of note, [the Veteran] was exposed to asbestos in Navy for about 3 years and in post[-]service occupation for about 24 years. Hence [a] majority of asbestos exposure was likely in [his] civilian job. . . . [However,] I don't think that asbestosis materially or substantially caused [the] Veteran's death. This is because the cause of death was lung cancer. . . . I cannot tell if asbestosis caused or aggravate[d the] Veteran's lung cancer. Asbestosis and lung cancer are two separate disorders caused by exposure to asbestos. Hence, asbestosis by itself is not a cause of lung cancer. It does imply that the [Veteran] had significant exposure to asbestos. Likely cause of lung cancer in this Veteran was [a] combination of smoking and asbestos exposure. . . . From the chart review, I don't think that lung cancer had its onset in service as [the] Veteran developed lung cancer much later in life. However, lung cancer may in part be related to asbestos exposure in service. I cannot say definitely that lung cancer was related to conceded in-service asbestos exposure. His cancer was caused by extensive smoking history as well as asbestos exposure. His asbestos exposure happened in service and in civilian jobs. It is difficult to say how much asbestos exposure in [the] Navy contributed to development of cancer. From review of the chart, it appears that the major contributors to development of cancer in this Veteran are extensive smoking history as well as lengthy asbestos exposure in [his] civilian job[s]. Asbestos exposure in [the] Navy may have a minor contribution. It may have been a factor in the development of cancer along with extensive history of smoking and history of asbestos exposure in civilian jobs. [The a]ppellant[]'s contention is that the Veteran died from exposure to asbestos during his military service. As noted above asbestos exposure in [the] Navy may have been a minor contributor to development of lung cancer along with other bigger contributors (long history of smoking and asbestos exposure in civilian jobs). I have reviewed that May 2011 VA [] examiner's views. With regards to that I think that [the] Veteran likely had asbestosis. As noted above asbestosis was not the cause of death. The question is if [the] Veteran's lung cancer was related to asbestos exposure in the Navy. It is possible that lung cancer was related to this exposure in a small way; as noted above the main contributors to development of lung cancer were extensive smoking as well as asbestos exposure in [his] civilian job[s]. (Emphasis added). As noted above, in light of the above military occupational specialties of the Veteran during his period of service, the Board concedes that he had asbestos exposure during military service. See 38 U.S.C.A. § 1154(a) (West 2002). While it is clear that the Veteran had asbestosis, the VHA examiner concluded that such a diagnosis was not a material or substantial cause of the Veteran's death. The Veteran's death in this case is clearly lung cancer. The Board notes that the Veteran did not develop lung cancer in service or until many years thereafter; thus, service connection on a presumptive basis is not warranted in this case. See 38 C.F.R. §§ 3.307, 3.309; see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Instead, the question is whether the Veteran's asbestos exposure in service caused his lung cancer. The Board finds that the evidence with regards to that issue is in equipoise. In so finding, the Board notes that the Veteran's in service asbestos exposure was 3 years in duration, compared with 24 years of occupational asbestos exposure post-service. Thus, it is more likely that the Veteran was exposed to more asbestos after military service than during his period of service. Additionally, Dr. A.L.F.'s September 2004 letter notes that asbestos exposure, particularly when compounded on top of cigarette smoking, significantly increases the risk of lung cancer development and concluded that both of asbestos exposure and cigarette smoking caused the Veteran's lung cancer; he did not delineate between in-service and post-service asbestos exposure or note the significant degree of difference between exposure during after service rather than during his period of service. None of the opinions obtained prior to the VHA examiner's opinion directly parse out the different types of exposure that the Veteran had, and the Board notes that the May 2011 examiner's opinion is of limited probative value given that he noted the asbestos exposure in service was "conjectural." VA has specifically conceded exposure in this case. The VHA examiner's opinion is also fairly ambivalent with regards to forming a direct opinion as to whether the Veteran's in-service asbestos exposure was the cause of his lung cancer. The VHA examiner did particularly note that the post-service exposure was significant more than the in-service exposure, and that the "main contributors" to the development of the Veteran's lung cancer were his long history of cigarette smoking and his post-service occupational asbestos exposure in his civilian jobs. Nevertheless, the VHA examiner's opinion is clear that the Veteran's in-service asbestos exposure was a "minor contributor" and that it was "possible that lung cancer was related to [his in-service asbestos] exposure in a small way." The Board finds this to be particularly significant in this case. It is clear that the Veteran's asbestos exposure in service, however small and seemingly insignificant in this case, was at least a "minor contributor" to the subsequent development of lung cancer in this Veteran. While the VHA examiner did not quantify or otherwise define the likelihood of such in-service exposure in this case, the Board finds that the evidence of record is at least in equipoise with regards to whether the Veteran's lung cancer was, at least in small part, caused by his conceded in-service asbestos exposure. In such a case the Board must resolve doubt in favor of the appellant. Accordingly, by resolving doubt in favor of the appellant, the Board finds that service connection for cause of the Veteran's death is warranted in this case. See 38 C.F.R. §§ 3.102, 3.312; see also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for cause of the Veteran's death is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs