Citation Nr: 1325548 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-32 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION The Appellant is represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 1948 to March 1968. The Veteran died in December 2008. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for residuals of gall bladder surgery. 2. The Veteran was exposed to asbestos during his active military service aboard various U.S. Navy ships. 3. The evidence is at least in equipoise as to whether the Veteran's asbestosis was etiologically related to his inservice asbestos exposure. 4. The evidence is at least in equipoise as to whether the Veteran's asbestosis contributed to the Veteran's death. CONCLUSION OF LAW A service-connected disability contributed substantially and materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Historically, the Veteran served on active duty service from February 1948 to March 1968. The Veteran died in December 2008. The Appellant is the Veteran's surviving spouse. In January 2009, the Appellant submitted a claim of entitlement to service connection for the cause of the Veteran's death. This claim was denied in a June 2009 rating decision because the RO determined that, given the Veteran's Military Occupational Specialty of Storekeeper, it was unlikely that he was exposed to asbestos during his active military duty. Subsequently, the Appellant perfected an appeal to the Board. Generally, 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, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). VA death 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; 38 C.F.R. §§ 3.5, 3.312 (2012). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). If the evidence shows that the veteran died of a disability that was ultimately related to his military service; the regulations do not require a service-connected disability to be the primary cause of death, only to be "etiologically related" or "causally connected." 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. At the time of the Veteran's death, service connection was in effect for residuals of gall bladder surgery. The Appellant has not asserted, and the evidence of record does not otherwise support finding that these service-connected residuals were the principle or a contributory cause of the Veteran's death. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement). Instead, the Appellant claimed that the Veteran experienced asbestosis at the time of his death that was related to his inservice exposure to asbestos. Moreover, the Appellant asserted that the Veteran's asbestosis was a contributory cause to his death. A June 2006 private computed tomography scan of the Veteran's chest demonstrated the presence of calcified pleural plaques that were compatible with asbestos-related pleural disease. In a July 2009 letter, the Veteran's treating physician stated that the Veteran experienced asbestosis. Consequently, the Board finds that evidence of record sufficiently demonstrated that the Veteran was diagnosed with asbestosis at the time of his death. As such, the salient issues are (1) whether the Veteran was exposed to asbestos during his active military duty: (2) whether the Veteran's asbestosis was related to that inservice exposure; and (3) whether the Veteran's asbestosis was a contributory cause of the Veteran's death. With respect to the issue of whether the Veteran was exposed to asbestos during his active military duty service, the Appellant asserted that he was exposed consequent to his duties aboard various U.S. Navy vessels. Specifically, the Appellant stated that the Veteran reported to her that he was assigned to different aspects of the ships on which he served depending on the alert level, including being stationed at a gun turret during General Quarters. When the guns fired, the Veteran also reported to the Appellant that the resultant vibrations disturbed asbestos insulation to which he was then exposed. The Appellant's statements are competent and credible evidence as to what the Veteran reported to her, especially given the lack of contradicting evidence. Further, a review of the Veteran's service treatment records demonstrated that he was stationed aboard the U.S.S. Cony, the U.S.S. William V. Pratt, the U.S.S. Coral Sea, and the U.S.S. Bulwark. Moreover, given the Veteran's extensive service aboard U.S. Navy vessels, the Board finds that it is reasonable to conclude the Veteran's service was not limited to duties associated with his Military Occupational Specialty of Storekeeper. Significantly, the Board observes that the Veteran served in the military during an era when asbestos was widely used aboard U.S. Navy vessels and, thus, it is also reasonable to conclude that the Veteran was exposed to asbestos consequent to his service aboard these vessels. Additionally, during the pendency of this appeal, the Appellant stated that the Veteran's post-service occupation did not expose him to asbestos. Based on the above, and with generous application of the benefit of the doubt doctrine, the Board finds that the Veteran was exposed to asbestos during his active military service while stationed aboard various U.S. Navy vessels. The Board must now address whether the Veteran's inservice exposure to asbestos resulted in his asbestosis, and whether his asbestosis was a contributory cause of his death. Preliminarily, the Board observes that the VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21, provides guidance in adjudicating asbestos-related claims. The guidelines provide that the latency period for asbestos-related diseases varies from 10 to 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). According to a December 2008 certificate of death, the immediate cause of the Veteran's death was respiratory arrest, with aspiration pneumonia listed as an underlying cause. The evidence of record included only one opinion that addressed whether the Veteran's asbestosis was etiologically related to his active military service and was a contributory cause of the Veteran's death. Specifically, in a July 2009 letter, the Veteran's treating physician, George Camacho, M.D., indicated that the Veteran had been diagnosed with asbestosis and then opined as follows: [The Veteran] served a number of years in the U.S. Navy with time spent on ship and submarine duty. [The Veteran] did maintenance in close quarters on these vessels and was inhaling asbestos particles on an almost daily basis. As a result, [the Veteran] developed asbestosis and subsequent respiratory insufficiency which was a significant factor in his demise. [The Veteran's] respiratory problems were a direct result of duties he performed while serving in the Navy. The Board acknowledges that the calculation undertaken by Dr. Camacho in rendering the July 2009 opinion does not mirror the evidence of record, including the Veteran's duties aboard U.S. Navy vessels and his claimed asbestos exposure levels. Further, the doctor's July 2009 opinion did not address the Veteran's documented smoking habit or the other disabilities present at the time of his death. Moreover, Dr. Camacho did not provide a rationale for the conclusion reached with regard to how the Veteran's asbestosis contributed to his cause of death. Given these inadequacies, the Board finds that the probative value of Dr. Camacho's July 2009 opinion is diminished. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). Despite the inadequacies of the July 2009 opinion, the evidence of record was otherwise negative for an opinion that addressed the etiological relationship between the Veteran's asbestosis and his inservice asbestos exposure and between the Veteran's asbestosis and the cause of his death. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There was no post-service evidence of record that disassociated the Veteran's asbestosis from his inservice asbestos exposure or disassociated his asbestosis from the cause of his death. As mentioned above, the only competent etiological opinion of record was that of Dr. Camacho, which supported the Appellant's claim. Accordingly, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's asbestosis was etiologically related to his active military service and at least in equipoise as to whether the Veteran's asbestosis was a contributory cause of his death. With application of the doctrine of reasonable doubt, the Board finds that the Veteran's asbestosis was due to his inservice asbestos exposure and, thus, was service-connected. Further, the Board finds that the Veteran's asbestosis contributed substantially or materially to cause his death. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection is warranted for the cause of the Veteran's death. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs