Citation Nr: 1330487 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-17 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from February 1945 to July 1946. He died in September 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision, which reopened the claim for service connection for the cause of the Veteran's death, but then denied the claim. In January 2010, the Board reviewed the October 2008 rating decision, and affirmed the reopening of the claim on the merits. The Board then denied the claim. In May 2011, the United States Court of Appeals for Veterans Claims (Court) set aside the Board's decision that denied service connection for the cause of the Veteran's death and remanded the claim for further adjudication consistent with the Court's memorandum decision. In February 2012, the Board then remanded the instant claim to the Appeals Management Center (AMC) for further development. The Board again remanded the claim in January 2013. In June 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2012). The requested opinion has been provided and has been associated with the Veteran's VA claims folder. The appellant and her representative received a copy of the opinion in August 2013; and, shortly thereafter, they provided no additional argument. 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 certificate of death indicated that the Veteran died in September 2006 from ventricular fibrillation, of minutes duration, septic shock of hours duration, and metastatic colon cancer of months duration. An amended death certificate added that asbestosis was a significant condition contributing to death, but not resulting in the underlying causes of death provided in the original death certificate. An autopsy was not performed. 2. At the time of the Veteran's death, service connection had not been established for any disability. 3. The competent and credible evidence failed to demonstrate that either the cause of death listed on the Veteran's death certificate or otherwise determined to contribute to his death was incurred in or related to his military service, or that a service-connected disability cause or substantially or materially contributed to the Veteran's death, including exposure to asbestos in service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1116, 1310, 5103, 5107 (West 2002 and Supp. 20121); 38 C.F.R. §§ 3.303 , 3.304, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the context of a claim for DIC benefits, § 5103(a) 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, 352-53 (2007). The appellant was notified in an August 2008 of what was partially necessary to support a DIC claim. However, sufficient notice of the VCAA pursuant to Hupp was not provided. While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, as identified in its January 2013 remand, the Board determined that the appellant was not provided sufficient VCAA duty to notify. The Board observed that the elements of Hupp had not been met, as the appellant was not informed of the conditions for which the Veteran was service-connected, nor was she informed of the information to substantiate the claim based on conditions not yet service connected. The RO was directed to issue a letter/notice that corrected these deficiencies. A corrective letter was sent to the appellant in February 2013. This letter explained what evidence was necessary to establish a claim pursuant to Hupp. With these letters, the RO effectively satisfied the notice requirements with respect to the issue on appeal, which was subsequently readjudicated in an April 2013 supplemental statement of the case. Under these circumstances, the Board finds that adequate notice was provided to the appellant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Neither the appellant nor her representative has alleged prejudice with respect to notice, as is required. See Shinseski v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet.App. 128 (2008). None is found by the Board. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. With respect to obtaining a medical opinion, VA obtained such an opinion in March 2007, February 2012, and a VA medical expert opinion performed in June 2013. Although varying in the standard used, none of the findings were indicative of a diagnosis of asbestosis. The June 2013 VA medical expert opinion specifically indicated that the Veteran did not have asbestosis and gave a complete rationale for his findings. The appellant was offered the opportunity to set forth her contentions during a Board hearing. She declined. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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 else be etiologically related. 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; 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. 38 C.F.R. § 3.312(b). 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). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In those cases, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran died in September 2006, at the age of 79. According to his death certificate, the immediate cause of death was ventricular fibrillation of minutes duration, septic shock of hours duration, and metastatic colon cancer of months duration. A March 2008 amended death certificate added that asbestosis was a significant condition contributing to death, but not resulting in the underlying causes of death. An autopsy was not performed. At the time of his death, the Veteran was not service connected for any disability. It is the appellant's primary contention that the Veteran's cause of death was the result of asbestosis, which was due to exposure to asbestos in service. She maintained that he was exposed to asbestos during his service on a Naval ship during World War II. The Veteran's military separation document indicates that he was a fireman first class while in service. Prior to his death, by rating decision of August 2005, service connection for asbestosis was denied. Service treatment records (STRs) do not reflect treatment or diagnoses related to asbestosis or any lung disorder. The evidence of record does not show that the Veteran had any lung disorder within one year of service discharge. Put another way, there is no evidence of asbestosis or lung disorder during the Veteran's active service. The STRS also did not show treatment of or diagnoses related to metastatic colon cancer nor was there any evidence of metastatic colon cancer within one year of service discharge. In March 2006, the Veteran was seen as a new patient at Duke University for evaluation for asbestosis. He was requesting an evaluation to determine whether he had asbestosis. He reported to the physicians that he had an x-ray at VA which was suggestive of prior asbestos exposure. He gave a history of being exposed to asbestos in the Navy. He farmed after service and at the time of the examination, had retired from farming due to a diagnosis of Waldenstrom's macroglobulinemia. Respiratory examination showed lungs clear to auscultation with fine basilar crackles and mildly decreased breath sounds in the bases. Otherwise, no wheezing or rhonchi was heard. Chest x-ray of January 2006 revealed persisted low lung volumes suggestive of fibrosis. There was no effusion. Pulmonary function test (PFT) revealed no evidence of obstruction with mild restriction. Lung capacity was 69 percent of predicted vital capacity. DLCO was normal. The assessment was restrictive lung disease. The physician stated that the Veteran's restrictive lung disease with evidence of pulmonary fibrosis on chest x-ray may be consistent with a prior history of exposure to asbestos. The physician indicated, however, that a diagnosis of asbestosis would require an open lung biopsy, which the Veteran was unwilling to pursue at that time. In June 2006, VA records showed a computed tomography (CT) which found the lungs to be abnormal. After chest x-ray, colonoscopy, and CT of the liver, it was determined that the Veteran had primary site, colon cancer. A review of the CT of the thorax with radiology indicated they did not think that the Veteran had asbestosis. The lung lesions may be mets, but according to the examiner, were less likely primary lung cancer. Also in June 2006, the examiner stated that pulmonary scarring was attributed to asbestosis and a history of Waldenstrom's macroglobulinemia treated with chemotherapy many years prior. The chest x-rays showed three lung nodules which his spouse stated were consistent with a history of prior nodules. Waldenstrom's was noted by the examiner to also present as lung findings. In August 2006, a VA examiner, who was the Veteran's attending physician, indicated, in pertinent part, that it was his opinion that the Veteran was subjected to an exposure of asbestos while serving aboard the US Naval ship the USS Chincoteague, and the medical consequence of such exposure significantly contributed to his death. A VA opinion was rendered in connection with the claim in March 2007. A thorough review of the claims folder was made. The examiner indicated that it was evident that although the Veteran did have some mild restrictive disease and reported interstitial fibrosis which was not confirmed in his chest CT scan of June 2006, it was his opinion that diagnosis of asbestosis was not firmly established by the objective criteria. He indicated that to state that the Veteran's asbestosis contributed to his demise would require him to resort to mere speculation. In August 2007, the VA attending examiner indicated in a statement to the record that the appellant had requested that he amend the Veteran's death certificate. It was the appellant's contention that asbestosis or mesothelioma were major contributors to the Veteran's death. The appellant stated the Veteran was said to have had asbestosis. The examiner indicated that the CT scan showed evidence of metastatic cancer and a colonoscopy showed adenocarcinoma. The CT chest scan and abdomen showed no reason to suspect mesothelioma. The chest CT did show some evidence of minimal subpleural fibrotic changes as well as some appearance of emphysema. They were not commented on in the official report and were not prominent. The examiner stated that the Veteran could have had asbestosis-parenchymal lung disease from asbestos. However, the examiner stated that there was no way he could make this diagnosis or completely exclude this possibility without pathological examination of the lung. Even if asbestosis was present, according to the examiner, there was no clear evidence that this problem was an immediate or proximate cause of the Veteran's death. He had profound hypotension upon transfer to MICU and developed ventricular fibrillation after transfer there. Either sepsis, bleeding, myocardial infarction, or some other acute event was the likely cause of death. No autopsy was performed. Pursuant to the May 2011 Court remand, the Board instructed the AMC on remand to obtain a VA opinion as to the cause of the Veteran's death. A February 2012 VA opinion was provided. The examiner was asked to opine whether it was at least as likely as not that the deceased Veteran had asbestosis. The examiner indicated that he could not resolve this issue without resorting to mere speculation. The examiner stated that there was no objective evidence that the Veteran had asbestosis. The etiology of the moderate restrictive ventilator defect on PFT and imaging abnormalities were unknown. It was unknown as to whether the moderate restrictive ventilator defect and the imaging abnormalities could have been due to Waldenstrom's macroglobulinemia and/or its treatment or possibly environmental exposures while working on the farm. As with another VA examiner, the examiner stated that there was no way to make this diagnosis or completely exclude the possibility without pathological examination of the lung. When asked whether it is at least as likely as not that asbestosis which was not identified as the primary cause of death, nevertheless contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death, the examiner opined that it was less likely as not that asbestosis which was not identified as the primary cause of death, nevertheless contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. He stated that there was no objective evidence that the Veteran's moderate restrictive ventilator defect contributed to the Veteran's death, regardless of the cause. There was no objective evidence of respiratory/lung/pulmonary symptoms or examination findings in the progress notes leading up to final admission and death. Finally, the examiner was asked whether it was at least as likely as not that there was a causal connection between asbestosis and death as opposed to asbestosis casually sharing in producing death. The examiner stated that it was less likely as not that there was a "causal connection" between asbestosis and death as opposed to asbestosis "casually" sharing in producing death. The examiner stated that there was no objective evidence that the Veteran had asbestos related lung disease at the time of his death or during/associated with the preceding illness leading to death. In June 2013, a VHA opinion was sought in connection with the appellant's claim. At the outset, the examiner indicated the general diagnostic criteria for asbestosis set forth by the American Thoracic Society (ATS). These included: * Evidence of structural pathology consistent with asbestosis, as documented by imaging or histology. * Evidence of causation by asbestos as documented by the occupational or environmental history, markers of exposure (usually pleural plaques), recovery of asbestos bodies, or other means. * Exclusion of alternative plausible causes for the finding. * The abnormal chest x-ray and its interpretation remain the most important factor in establishing the presence of pulmonary fibrosis. The VA medical expert indicated that there was a history of asbestos exposure during the Veteran's naval service between 1945 to 1946 providing a risk factor for asbestosis. A number of plain chest radiographs suggest "interstitial markings", findings that can be seen in asbestosis, but can also be attributed to congestive heart failure. However, the limited technique of plain radiography makes this finding unreliable. CT provides imaging in three dimensions and superior resolution. For that reason, CT is considered the standard when diagnosing lung diseases such as asbestosis. On a CT of July 1999, the radiologist commented on the portion of the CT scan that visualized the bases of the lungs. The report specifically mentioned the absence of "pleural or parenchymal disease." Based on radiology report from June 2006, a CT of the chest describes findings consistent with metastatic disease from colon cancer. There is no mentioning of findings suggestive of pulmonary fibrosis or any other findings of asbestosis. There is no mention of findings that would indicate any past asbestos exposure, e.g. pleural plaques. Furthermore, in hematology and oncology consultation from June 2006, reference was made of a review of relevant CT images with radiologist review of the CT of the thorax, and they do not think that the Veteran has asbestosis. According to the examiners, the lung lesions may be mets or less likely lung cancer, primary. The examiner also stated that on PFT, one would expect abnormalities of the diffusion capacity (DLCO), an indicator of disease of the lung tissue as seen in asbestosis. However, on a January 2006 PFT, the DLCO was reported as normal. There was mild restriction which would be consistent with asbestos, but could also be seen in many other lung conditions. In summary, the examiner stated that based on the available medical records and radiology reports, he was confident that the deceased Veteran did not have asbestosis. The absence of the disease on CT is sufficient to rule out asbestosis and no further testing would have been required to clarify the presence or absence of asbestosis. When asked if it is at least as likely as not that the deceased Veteran had asbestosis, the examiner indicated that the absence of imaging abnormalities usually found in asbestosis rules out the diagnosis of asbestosis. According to the examiner, the Veteran did not have asbestosis. When asked if it is at least as likely as not, that the asbestosis, which was not identified as the primary cause of the Veteran's death, nevertheless contributed substantially or materially to cause the Veteran's death, combined to cause death, or aided or lent assistance to the production of death, the examiner stated that since there is no diagnosis of asbestosis, therefore, it cannot be the cause of death. Finally, when asked if it is at least as likely as not that there was a "causal connection" between asbestos (asbestosis) and death as opposed to asbestosis "casual" sharing in the production of death, the examiner stated that there was no causal connection between asbestos (asbestosis) and the death of this Veteran. With regard to claims for service connection for asbestosis or other asbestos-related diseases, there is no specific statutory or regulatory guidance. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, ch. 1, section H, 29, referencing ch. 2, section C, 9) (last updated September 29, 2006) (hereinafter "M21-1MR"). An opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, topic 29 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. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9; see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In this case, the Veteran has a history of exposure to asbestos in service. There is no evidence of record that he had exposure in his civilian employment of farming. . What is also clear from the evidence of record is that none of the three VA medical opinions, which includes a VHA medical expert opinion, has found that the Veteran has a clear diagnosis of asbestosis. No pleural plaques have been found. Although there has been some evidence of pulmonary fibrosis, on chest x-ray of October 2005 and January 2006, the March 2007 opinion indicated that no diagnosis of asbestosis was made in connection with these findings. Moreover, the VHA medical expert opinion has indicated that because of its three dimensional and superior resolution, CT scans are considered the standard when diagnosing lung diseases such as asbestosis'. None of the CT scans have shown or indicated a diagnosis of asbestosis. None have been indicative of pleural plaques. Moreover, the most recent CT scan was more consistent with his metastatic colon cancer. Considering all of the evidence of record and using the standard set forth by the ATS, the VHA medical expert determined that he felt confident that the Veteran did not have a diagnosis of asbestosis. Since none of the medical opinions have set forth a diagnosis of asbestosis or any other disease related to exposure to asbestos, there is no diagnosis of asbestosis or a disease connected to the exposure of asbestos. One VA medical opinion, of August 2006, indicates, in pertinent part, that the Veteran's exposure to asbestos in service while serving aboard ship caused asbestosis, and ultimately cause his death. Unfortunately, this examiner gave no findings pointing to asbestosis, and no rationale for his findings. Therefore, the probative value of this VA opinion was diminished, due to the lack of findings establishing the asbestosis diagnosis and due to the failure to give a rationale for his findings. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, since the examiner never indicated how he determined the diagnosis of asbestosis, nor the basis of his opinion, the basis of the August 2006 VA opinion lacked probative value. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Since the VA March 2007 and February 2012 VA opinions, and the June 2013 VHA medical expert opinion all indicated the lack of a true diagnosis of asbestosis, or any other disability related to service and the Veteran's death, and the August 2006 VA medical opinion lacks probative value because of its lack of rationale for its findings, the Board concludes that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs