Citation Nr: 1330916 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-46 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to November 1955. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. By that rating action, the RO denied service connection for the cause of the Veteran's death. The appellant seeks surviving spouse benefits. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. In March 2013, the Board remanded the claim on appeal to the RO for additional development. The requested development has been completed, and the issue on appeal has returned for further appellate consideration. FINDINGS OF FACT 1. The evidence of record does not contain objective evidence of the Veteran having been exposed to asbestos during his period of active military service. 2. The weight of the evidence of record shows that methotrexate therapy used to treat the Veteran's non-service-connected psoriatic arthritis contributed significantly to his fatal pulmonary fibrosis. 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, 1131, 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist 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; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The appellant has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. VA provided the appellant with notice on the Pelegrini II VCAA elements in a pre-adjudication letter issued in August 2009. This letter, in part, informed the appellant of the criteria necessary to prevail on her claim for service connection for the cause of the Veteran's death, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in September 2009. This letter also notified the Veteran of the Dingess elements. Nothing more is required in this case. In the context of a claim for service connection for the cause of a veteran's death, such as here, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the disabilities, 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 claim for service connection for the cause of a veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of a veteran's death based on a disability not yet service-connected. Unlike a claim to reopen, an original claim for service connection for the cause of a veteran's death imposes upon VA no obligation to inform a claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The above-cited letter met the Hupp requirements with respect to the appellant's claim for service connection for the cause of the Veteran's death as it informed her that the Veteran was not service-connected for any disabilities, specifically, his fatal pulmonary fibrosis, during his lifetime. VA also has a duty to assist the Veteran (in this case, appellant) in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent treatment records, and providing an examination (opinion in cause of death cases) when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's service treatment and personnel records have been associated with the claims file. In addition, private medical providers from whom the Veteran sought care during his lifetime are also of record. As noted in the Introduction, in March 2013, the Board remanded the appellant's claim, in part, to obtain outstanding VA treatment records from the Newington, Connecticut VA Medical Center and additional records from A. R., M. D. In an April 2013 letter to the appellant, she was requested to complete and return an authorization form that would allow VA to obtain any outstanding treatment records from A. R., M. D. The appellant did not submit the requested form to VA. Thus, additional records from A. R., M. D. that might have contained relevant evidence in support of the claim could not be obtained. The Board notes that in a September 2010 Statement of the Case (SOC) and July 2013 Supplemental Statement of the Case (SSOC), the RO referenced "Treatment reports from the VA Connecticut Healthcare System" and treatment records from the "VAMC West Haven for the period August 15, 2000 to May 6, 2009." (See September 2010 and July 2013 SOC and SSOC, pages (pgs.) 1 and 11, respectively)). The RO only listed and referenced the above-cited VA treatment reports, but did not provide any discussion as to their contents. None of these VA treatment records are contained in the Veteran's physical claims file and, contrary to the RO's report in the July 2013 SSOC, treatment records from the VA Medical Center (VAMC) in West Hartford, Connecticut, dated from August 15, 2000 to May 6, 2009, have not been uploaded to the Veteran's Virtual VA electronic claims file or the Veterans Benefits Management System (VBMS) electronic records system. The Board finds that a remand to obtain these records would not prejudicial to the appellant. As explained in more detail below, the crux of the appellant's claim hinges on her contention that the Veteran's death was caused by his in-service asbestos exposure. She has not alleged any other in-service theory in the development of the Veteran's fatal pulmonary fibrosis. The United States Navy has specifically determined that the Navy Asbestos Litigation Support Office (NAVALSO) database did not contain any asbestos information regarding the submarine upon which the Veteran was stationed, USS IREX (SS 482), or the probability of asbestos exposure for an ordinary seaman. In fact, the NAVALSO noted that the Veteran was a Signalman, not an ordinary seaman, per the SM rating provided to it by VA. Thus, any opinion contained in the outstanding VA treatment records that would purport to relate the Veteran's fatal pulmonary fibrosis to in-service asbestos exposure would be based on an accurate premise and would lack probative value. Thus, the Board finds that there is no prejudice to the Veteran in not obtaining these outstanding VA treatment records in this case. A VA medical opinion was not obtained to address the appellant's claim for service connection for the cause of the Veteran's death. The appellant has not presented competent evidence of the Veteran's fatal refractory multilobar pneumonia or any respiratory disability having originated during active military service, or of a causal link between service or a service-connected disorder and either of these conditions to warrant a VA medical opinion. 38 U.S.C.A. § 5103A(a). DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). While the appellant has primarily maintained that the Veteran's fatal pulmonary fibrosis was due to in-service asbestos exposure, as discussed above, there is no credible evidence of such exposure. Thus, absence such information, a VA examination addressing this question is also not required. Id. As the Board discusses below, the record indicates that methotrexate therapy used for the treatment of psoriatic arthritis had significant contributed to his fatal pulmonary fibrosis. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, the Board finds that it may proceed with adjudication of the appellant's claim based on the current evidence of record. II. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. 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. 38 C.F.R. § 3.303(b). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. In this case, the tenets of 3.303(b) have not been invoked with respect to the appellant's claim for service connection for the cause of the Veteran's death because the Veteran's death was not the result of a chronic condition listed under 3.309(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Cause of Death-criteria To establish service connection for the cause of a 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. 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, a causal connection must be shown. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. III. Merits Analysis Taking into account these two reasons for the absence of a showing on the element of a causal nexus to service, the Board first addresses the issue of proof of asbestos exposure during military service. The appellant asserts that the Veteran's fatal pulmonary fibrosis was the result of his exposure to asbestos while serving aboard a submarine during active military service. (See VA Form 9, received by the RO in November 2010). During his lifetime, the Veteran also reported having been exposed to asbestos while serving aboard submarines during military service. (See April 2009 report, prepared by The William Backus Hospital). As it pertains to claimed asbestos exposure, there is nothing listed within the Veteran's service personnel records as to occupational specialty or hazardous duty assignment that would have likely entailed asbestos exposure. The Veteran's DD 214 reflects a military occupational specialty of "ordinary seaman" and shows that he had worked as a machinist apprentice at a naval shipyard prior to service entrance. His service personnel records confirm that he was he received annual training in submarine school, volunteered for submarine training and was stationed aboard the USS IREX (SS482) from June 1954 to November 1955. While the appellant, as well as the Veteran during his lifetime, have claimed that he was exposed to asbestos while serving aboard submarines during active military service, the United States Department of the Navy, informed VA that NAVALSO's database did not contain any asbestos information regarding the USS IREX (SS 482), or the probability of asbestos exposure for an ordinary seaman. The United States Navy also reported that the Veteran's "SM" was not that of an ordinary seaman, but a Signalman. The Board notes that the Veteran, during his lifetime, reported that he had not been directly exposed to asbestos, but that he had been contact with other servicemates that had been exposed. (See April 2009 report, prepared by Backus Hospital). An incident involving exposure to asbestos as a non-medical matter would tend to be best supported by documentary evidence, rather than the Veteran's assertions alone. See e.g., Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident). Moreover, there is no compelling lay witness testimony from the appellant or the Veteran during his lifetime as to the likelihood of asbestos exposure, given that the Veteran does not cite any specific situation or incident, but rather raises the idea that he was in the vicinity of other service personnel who were exposed. In addition, he gave a history of having been exposed to asbestos during his employment as a machinist at a shipyard, as well as a history of second-hand smoke exposure. (See April 2009 report, prepared by Backus Hospital). In sum, the Board cannot find that there is competent and credible evidence of asbestos exposure in this case, as to constitute a definitive finding of an underlying injury in service. For the purpose of rendering a comprehensive decision, however, the Board has still further reviewed this case from the perspective of whether the requirement of a causal nexus is met, even assuming for argument's sake that the underlying injury of asbestos exposure had been sufficiently proven. In this case, there is one opinion and it is against the claim. In a June 2009 report, A. R., M. D., noted that he had treated the Veteran for the previous years during his lifetime. Dr. A. R. indicated that the Veteran had multiple medical problems. Dr. A. R. opined that although the exact cause of the Veteran's pulmonary fibrosis was not determined due a lack of tissue or autopsy study, in his opinion, chronic methotrexate therapy that was used to treat his psoriatic arthritis had contributed significantly to the Veteran's pulmonary fibrosis, chronic anemia. This opinion is against the claim and is uncontroverted. Notably, is the absence of any other medical opinion on record indicating or suggesting the Veteran has asbestosis, or a respiratory condition, which is a direct residual of underlying asbestos exposure. Thus, Dr. A. R.'s opinion that relates the Veteran's fatal pulmonary fibrosis to methotrexate therapy for his psoriatic arthritis effectively rules out a causal connection between any alleged in-service asbestos exposure and his fatal pulmonary disability. Significant, as well, is that there is nothing to suggest that any other incident of service, besides asbestos, caused or contributed to the Veteran's fatal pulmonary fibrosis - particularly given the nearly 50 year interval between the development of pneumonia in April 2009 and his discharge from service in 1955. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). The Board has also considered the appellant's assertion that the Veteran's death was related to his period of active military service, namely his claimed asbestos exposure. She is considered competent to testify as to behaviors observed leading up to the time of the Veteran's death, and the Board accepts her statements as to his behavior as credible. However, the Board finds that the lay assertions as to the cause of his death are afforded little probative weight in the absence of evidence that those who offer them have medical training that can provide the supporting expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Where the determinative issue involves a medical opinion, such as here, there must be competent medical evidence to the effect that the claim is plausible. Id. Notably, the cause of the Veteran's death can only be answered by one with medical expertise; such medical conclusions cannot be identified by a lay person, such as the appellant. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, and as noted above, a private physician has attributed the Veteran's death to treatment for his non-service-connected psoriatic arthritis, and not to an in-service disease or event. Therefore, to the extent any lay argument contains opinions as to the medical etiology of any of the conditions that caused the Veteran's death, such lay argument is simply not competent or persuasive evidence. The preponderance of the competent and probative medical evidence is against a finding that the Veteran's death was related to his period of military service, to include claimed asbestos exposure. Here, as discussed above, the Board finds Dr. A R.'s medical opinion to be probative in this matter, and it provides strong medical evidence against a link between the underlying cause of the Veteran's death and his period of military service. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs