Citation Nr: 1327832 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-23 869 ) DATE ) ) On appeal from the Department of Veterans Affairs in Los Angeles, California 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 T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to January 1946, and from January 1948 to September 1948. The Veteran died in December 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2013, the appellant was afforded a hearing before Jonathan A. Kramer, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDINGS OF FACT 1. The Veteran died in December 2010; the death certificate, in Part I, lists the immediate cause of death as adenocarcinoma of the lung, and the underlying cause of death as emphysema. 2. The Veteran's cause of death is not related to his service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Cause of Death The appellant contends that the Veteran's cause of death is related to his service. She argues that he was exposed to asbestos while aboard troops ships during his service, and that this caused or contributed to his death. In her appeal (VA Form 9), dated in August 2012, she conceded that the Veteran had a history of smoking, and that he served in occupational specialties that have not been identified as having a probable or highly probable exposure to asbestos. However, she argued that he was transported aboard vessels known to have asbestos in them during his participation in several campaigns in the Pacific during World War II. See also, hearing transcript, hearing held in July 2013. 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. 38 C.F.R. § 3.312 (2012); see 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered as the principal (primary) cause of death when such 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) (2012). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c)(1) (2012). To the extent that a claim has been presented based on exposure to asbestos during service, 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, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines "asbestos" as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The Veteran's service records indicate that his "classifications in military specialties" during his first period of active duty were rifleman, supply clerk, ambulance driver, and M.T. dispatcher. Following training, his principal duties were noted to be rifleman, truck driver, supply NCO (non-commissioned officer), "dispatcher MT," and ambulance driver. His report of separation, dated in January 1946, states that his principal military duty was M.T. dispatcher. He served in combat with the 1st Marine Division during World War II. A service record for the Veteran's second period of active duty indicates that his military specialty was truck driver. The Veteran's service treatment reports do not contain any relevant findings, complaints, or diagnoses. The separation examination report from his first period of active duty, dated in January 1946, states that his respiratory system was normal, and that a chest X-ray was normal. There are no service treatment records for the Veteran's second period of active duty. As for the post-service medical evidence, it consists of private treatment reports from J.L.K., M.D., dated between 2009 and 2010. This evidence shows that the Veteran was noted to have a wide variety of medical disorders, to include COPD (chronic obstructive pulmonary disease), emphysema, and solitary pulmonary nodules of the right and the left lower lobes. The reports note that there was no evidence of interstitial pulmonary fibrosis. The earliest report, dated in July 2009, notes complaints of exertional dyspnea, with no other relevant history of symptoms. A June 2009 chest X-ray was noted to show "cardiomegaly increased, pulmonary artery segments and slight increased pulmonary vascular congestion." A pulmonary function test showed an FEV-1 of better than 100 percent of predicted without response to bronchodilators. The "conclusions and recommendations" noted COPD and emphysema, and that he was doing well and was stable on oxygen 24/7 (24 hours, seven days a week) with inhaled medicine, which was to be continued. He was also noted inter alia to have moderate to severe pulmonary hypertension related to severe diastolic dysfunction and hypertensive heart disease, atrial fibrillation, sleep apnea, and obesity. A September 2009 report notes that he was feeling well with mild exertional dyspnea. A CAT (computerized tomography) scan of the chest was noted to show stable right lower lobe pulmonary nodules, some stable increased interstitial marking bilaterally, and stable emphysema with a potentially new tiny left lower lobe pulmonary nodule that had not been present a year ago. A November 2010 report notes that the Veteran was losing weight and had more malaise and fatigue, lack of energy, anorexia, increased cough, chest congestion, and weakness with more dyspnea. A CAT scan showed a progression of a tiny nodule in the left lower lobe that was now a mass with mediastinal and hilar and hepatic disease all suggestive of metastatic cancer. The report notes probable metastatic adenocarcinoma, and bronchogenic carcinoma of the lung to hilum, mediastinum and liver. The Veteran's death certificate shows that he passed away in December 2010. The immediate cause of death is listed as adenocarcinoma of the lung, and the underlying cause of death as emphysema. Ishcemic heart disease is listed as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of his death, service connection was not in effect for any disabilities. In an opinion, dated in March 2011, Dr. J.L.K. stated that the Veteran had been in the Marines between 1942 and 1946, that he likely had a significant exposure to asbestos, and that this exposure increased his risk for developing asbestos-related diseases, including lung cancer. He stated that the Veteran died of lung cancer in December 2010, and that, "[I]t is more likely than not that his lung cancer and death were in part due to his asbestos exposure on-board ships as a Marine." In an opinion, dated in September 2011, a VA physician, G.K., M.D., stated that the Veteran's claims file had been reviewed. Dr. G.K. concluded that the Veteran's adenocarcinoma of the lung was not caused by or the result of exposure to asbestos. The examiner explained that this was because the Veteran's medical records did not display any indication of asbestos related pathology. In doing so, he explained the following: the Veteran's CT scans and chest X-rays do not show evidence consistent with asbestos exposure. There is no evidence of interstitial pulmonary fibrosis. Pulmonary function testing did not show any evidence of restrictive pulmonary disease. In a discussion of the background medical issues, he noted, among other things, that asbestosis refers to pneumoconiosis caused by inhalation of asbestos fibers and that it is usually characterized by slowly progressive diffuse pulmonary fibrosis. Exposure to substantial air concentrations of asbestos for at least 10 to 20 years are usually needed to produce interstitial fibrosis. Asbestosis is a dose-related disease with a long latency period. Pulmonary disorders associated with asbestos exposure include asbestosis, pleural disease, malignancy (mesothelioma and carcinoma). In specific regard to malignancy, the examiner states that asbestos exposure is the only known risk factor for mesothelioma. With carcinoma, asbestos exposure may increase the relative risk for bronchogenic cancer. The clear context of the opinion is that as there was no evidence of any marker of asbestos related lung pathology, the examiner concluded that the Veteran's adenocarcinoma was unrelated to any asbestos exposure. The Board finds that service connection for the cause of the Veteran's death is not warranted. The Veteran is not shown to have had any relevant treatment during service, nor is he shown to have had a military occupation specialty or duties that are considered to have exposed him to asbestos. In this regard, being transported aboard a ship, without more, is insufficient to show such exposure. Following separation from service, the Veteran is not shown to have ever been diagnosed with asbestosis. The Veteran's cause of death is shown to be adenocarcinoma of the lung. He died in 2010, about 62 years after separation from service, and the appellant has conceded that he had a history of smoking. In addition, the Board finds that the September 2011 VA opinion is highly probative evidence against the claim. In that opinion, the examiner, a physician, indicated that he had reviewed the Veteran's medical records, and his opinion is accompanied by a sufficient rationale. See Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The examiner stated, in part, that the Veteran's CT scans and chest X-rays do not show evidence consistent with asbestos exposure, that there is no evidence of interstitial pulmonary fibrosis, and that pulmonary function testing did not show any evidence of restrictive pulmonary disease. The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered the opinion of a private physician, Dr. J.L.K. However, his opinion is not shown to have been based on a review of the Veteran's C-file, or any other detailed and reliable medical history, it is without citation to clinical findings during service, and it does it include more than a cursory conclusion. Prejean; Neives- Rodriguez. It is simply outweighed by the contrary evidence of record. This evidence is therefore insufficiently probative to warrant the conclusion that the Veteran's cause of death was related to his service. With regard to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issue on appeal is based on the contention that the Veteran's cause of death was related to his service, specifically, that he was exposed to asbestos which caused or contributed to his lung adenocarcinoma. 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, whether or not the Veteran was exposed to asbestos during service, and, if so, whether it caused or contributed to his death, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that the Veteran's death was caused or contributed to by his service. The Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and that the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist The Board finds that the duties to notify have been fulfilled by information provided to the appellant in a letter from the RO dated in April 2011. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This letter notified the appellant of VA's responsibilities in obtaining information to assist the appellant in completing her claim, and identified the appellant's duties in obtaining information and evidence to substantiate her claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Board notes that in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) issued certain directives pertinent to cases where the issue is service connection for the cause of a veteran's death. In Hupp, the Court set forth three requirements for section 5103(a) notice. However, the Hupp Court stated that where (as here) a veteran was not service-connected during his lifetime, these three requirements do not apply. In this case, the appellant was afforded sufficient notice, as the April 2011 VCAA notice set forth the requirements for service connection for the cause of death, and it provided an explanation of the evidence and information required to substantiate a Dependency and Indemnity Compensation claim based on a condition that was not yet service-connected. Hupp, 21 Vet. App. at 352-353. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service medical reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's non-VA medical records, and an etiological opinion has been obtained. In July 2013, the appellant was provided an opportunity to set forth her contentions during a hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2013 hearing, the undersigned identified the issue on appeal. The appellant was provided the opportunity to explain her argument, and the criteria for a successful resolution of her claim were discussed. The testimony did not reflect that there were any outstanding medical records available that would support her claim. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The appellant and her representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced her in the adjudication of her appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claim on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim does not cause any prejudice to the appellant. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs