Citation Nr: 1334554 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-27 455 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to October 1959, and from June 1960 to December 1969-to include combat service during the Vietnam Conflict. He died in May 2008. The appellant is the Veteran's widow. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of the RO that, in pertinent part, denied service connection for the cause of the Veteran's death; and denied dependency and indemnity compensation (DIC) benefits, pursuant to the provisions of 38 U.S.C.A. § 1318. The appellant timely appealed. In December 2012, the appellant testified during a hearing before the undersigned at the RO. In May 2013, the Board requested an advisory medical opinion from a medical expert, for purposes of addressing medical questions for an equitable disposition of the appeal. See 38 C.F.R. § 20.901 (2012). This opinion was obtained in July 2013; and the Board furnished a copy of the opinion to the appellant, affording a 60-day period for response. A timely response was received from the appellant in September 2013. See 38 C.F.R. § 20.903. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDINGS OF FACT 1. The Veteran died May [redacted], 2008. The death certificate shows the immediate cause of death as chronic obstructive pulmonary disease due to or as a consequence of pulmonary fibrosis. Coronary artery disease and PTSD were listed as significant conditions contributing to death, but not resulting in the underlying cause. 2. During his lifetime, the Veteran was not service-connected for any lung disability. 3. Based on evidence received after the Veteran's death, his exposures to significant concentrations of hazardous materials as a firefighter during active service played a significant role in his developing lung disease that caused his death. CONCLUSIONS OF LAW 1. The Veteran's lung disease developed, in part, from exposures during active service and contributed substantially and materially to his death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2012). 2. The claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 (West 2002 & Supp. 2012) is moot and the appeal is dismissed. 38 U.S.C.A. §§ 1318, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, 3.326(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the appellant in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating her claims. II. Service Connection for Cause of the Veteran's Death Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in 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 it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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. Where the service-connected disability affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3) (2012). 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 disability was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. See 38 C.F.R. § 3.312(c)(4) (2012). The Veteran died on May [redacted], 2008. His death certificate shows that the immediate cause of death was chronic obstructive pulmonary disease, due to or as a consequence of pulmonary fibrosis. Other significant conditions shown, but not resulting in the underlying cause, were coronary artery disease and PTSD. An autopsy was not performed. At the time of the Veteran's death, service connection was not in effect for any lung disability. Service connection was in effect for PTSD, evaluated as 70 percent disabling; for bilateral hearing loss, evaluated as 10 percent disabling; and for tinnitus, evaluated as 10 percent disabling. A total disability rating based on individual unemployability (TDIU) was awarded, effective September 15, 2006. Service treatment records do not reflect any findings or complaints of respiratory problems or of lung disability. Chest X-rays taken in October 1959 were negative. Clinical evaluation of the Veteran's lungs and chest in July 1964 was normal. In November 1965, the Veteran reported pain in the left rib cage-most severe on coughing, heavy breathing, or quick movement. Examination at that time included a finding of pleuritic-type chest pain. Chest X-rays taken in May 1967 were within normal limits. Clinical evaluation of the Veteran's lungs and chest in July 1968 and at discharge examination in December 1969 was normal. Records in the claims file reflect that, prior to his death, the Veteran contended that his respiratory problems were due to inhaled toxic fumes while on crash sites during active service, and that his respiratory problems began in November 1965. He contended that he inhaled toxic fumes and smoke for eight years in his job as an aircraft crash line and rescue crew man. The Veteran estimated that he was involved in approximately 200 rescues during active service, and submitted an article entitled "Lung Disease in Fire Fighters." His occupational history revealed ten years of unprotected firefighting from 1959 to 1969 (during active service), and possibly some asbestos exposure. Pulmonary function testing in August 2007 show a smoking history of 6.5 pack years, and that the Veteran quit smoking in 1969. VA records show a primary diagnosis of chronic obstructive pulmonary disease, oxygen dependent; and a secondary diagnosis of pulmonary fibrosis, left lung base, hyperlipidemia, and hypertension in July 2003. Severe chronic obstructive pulmonary disease was noted in June 2005. Computed tomography scans conducted in July 2006 revealed chronic lung disease with cystic changes bilaterally, probably reflecting a component of pulmonary emphysema as well as underlying interstitial fibrosis. In August 2006, a VA physician opined that the Veteran's lung disease mostly appeared as a combination of centrilobular emphysema and pulmonary fibrosis. In December 2012, the appellant testified that the Veteran was first hospitalized for lung disability in 2006, although he had suffered from breathing problems since 1970. The appellant also contended that the Veteran's PTSD probably caused or contributed to his death, and submitted an article on the "proclivity of individuals with PTSD to engage in behaviors with adverse health consequences ...." She testified that the Veteran often missed dosages of his medications; and that he lacked concern for self-preservation as he struggled with PTSD for several years. In July 2013, VA received an independent medical opinion from an assistant medical professor and co-director of a university's interstitial lung disease program, who specializes in pulmonary, allergy and critical care medicine. The medical professor opined that there is at least a 50 percent probability that the Veteran's lung disease is related to his work as a firefighter during active service. The medical professor noted that the Veteran developed emphysema and pulmonary fibrosis, which led to his death, at a relatively early age; and that studies evaluating exposures to firefighters have demonstrated that they are frequently exposed to significant concentrations of hazardous materials. There is also evidence suggesting that firefighters are at an increased risk of mortality from non-malignant respiratory disease, such as in this case. The medical professor also thought that the fact that the Veteran did not have any acute respiratory problems during active service did not significantly reduce the possibility that he had significant exposures, or that the exposures contributed to development of his lung disease. The medical professor considered the Veteran's smoking history as fairly modest; and that given his likely significant exposures during active service, opined that there is at least a 50 percent likelihood that the Veteran's lung disease is in part due to his exposures during active service. The medical professor also opined that it is less than 50 percent likely that the Veteran's PTSD contributed to his death, based on the lack of evidence of "dangerous behavior" such as ongoing smoking; and that missed dosages of medications were unlikely to prolong survival in chronic obstructive pulmonary disease or pulmonary fibrosis, because there are no medical treatments other than oxygen therapy. The Board has given consideration to both the positive and negative evidence of record, and finds the overall evidence to be at least in relative equipoise on the question of whether a causal connection has been demonstrated between the Veteran's exposures to significant concentrations of hazardous materials as a firefighter during active service and his development of lung disease that caused his death. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Therefore, resolving all doubt in favor of the appellant, service connection for the cause of the Veteran's death is established. III. DIC Benefits Under 38 U.S.C.A. § 1318, DIC benefits shall be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected when the following conditions are met: (1) The Veteran's death was not caused by his or her own willful misconduct; and (2) The Veteran was in receipt of or entitled to receive (or but for the receipt of military retired pay was entitled to receive) compensation at the time of death for service-connected disability that either: (a) was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (b) was continuously rated totally disabling for a period of not less than 5 years from the date of the Veteran's discharge or other release from active duty; or (c) was continuously rated totally disabling for a period of not less than 1 year immediately preceding death, and the Veteran was a former prisoner of war. 38 U.S.C.A. § 1318 (2012). Here, the Board has granted service connection for the cause of the Veteran's death; therefore, the appellant is entitled to DIC benefits under 38 U.S.C.A. § 1310. When a Veteran dies after 1956 from a service-connected or compensable disability, the Secretary shall pay DIC benefits to such Veteran's surviving spouse. 38 U.S.C.A. § 1310. Therefore, the Board finds that it is unnecessary to address the merits of the claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 since a full grant of this benefit under 38 U.S.C.A. § 1310 has been awarded. Consequently, the Board concludes that the appeal for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is moot and the appeal is dismissed. 38 U.S.C.A. §§ 1318, 5107; 38 C.F.R. § 3.22. ORDER Service connection for the cause of the Veteran's death is granted. The appeal for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs