Citation Nr: 1337958 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-29 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had verified active duty service from November 1945 to August 1946 and from October 1950 to August 1951. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision from the Department of Veterans Affairs, Regional Office and Insurance Center, in Philadelphia, Pennsylvania, which denied a claim for entitlement to service connection for the cause of the Veteran's death. On her August 2009 substantive appeal, VA Form-9, the appellant indicated her desire to testify before a member of the Board from the RO via videoconference. The Veteran was scheduled for a Board videoconference hearing in December 2011; however, prior to the date of the hearing, she withdrew her request. 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 Veteran died in February 2007. The cause of death listed on his death certificate was renal failure, due to or as a consequence of congestive heart failure and asbestosis. The Veteran was not service-connected for any disease or disorder at the time of his death. 2. The preponderance of the credible evidence is against a finding that the Veteran was exposed to asbestos as a result of his naval service. 3. The preponderance of the evidence indicates that the Veteran was not diagnosed with a chronic renal, heart or lung disorder during service or within one year of separation from service, and there is no competent medical evidence that links the cause of his death in any to his period of military service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1116, 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires the United States Department of Veterans Affairs to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the claimant of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of a Veteran's death, the Court of Appeals for Veterans Claims, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), found that a claim for Dependency and Indemnity Compensation (DIC), includes a claim for entitlement to service connection for the cause of the Veteran's death. As such, VA notice to the appellant must include the following: a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Id. Here, VA sent letters to the appellant in September 2008, October 2010 and November 2011 that addressed the notice elements concerning the Veteran's cause of death claim. In the September 2009 notice letter, VA informed the claimant of what evidence is required to substantiate the DIC claim based on a condition not yet service connected, and apprised the claimant as to her and VA's respective duties for obtaining evidence. The appellant was informed that the Veteran was not service connected for any disability at the time of his death. Hupp, 21 Vet. App. at 354. In these notice letters, VA also provided notice regarding how disability ratings and effective dates for the award of benefits will be assigned if service connection is granted or a higher evaluation is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Since the Board has concluded that the preponderance of the evidence is against the claim, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and service personnel records as well as private treatment records identified by the appellant have been obtained, to the extent possible. The appellant has not referenced further outstanding records that she wanted VA to obtain or that she felt were relevant to the claims. A VA medical opinion addressing the etiology of the Veteran's death was not obtained in this case. The Board finds that it was not necessary to obtain a medical opinion to resolve this claim, as there is no lay or medical evidence of renal, heart or lung related problems in service or for several decades thereafter and no medical evidence suggesting a link between the Veteran's period of service and the cause of his death. Moreover, despite the appellant's contention that the Veteran was exposed to asbestos in service and developed asbestosis as a result, the preponderance of the credible evidence of record does not reflect that the Veteran was exposed to asbestos as result of his naval service. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir 2008); Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). See also 38 U.S.C.A. § 5103A(a). 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). 2. Service Connection for Cause of the Veteran's Death The appellant is claiming entitlement to service connection for the cause of the Veteran's death. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). Here, at the time of Veteran's death, service connection was not in effect for any disability. In this case, the appellant asserts that the cause of the Veteran's death is related to his period of military service. The Veteran's February 2007 death certificate indicates that the primary cause of his death was renal failure, and immediate or underlying causes were congestive heart failure and asbestosis. The appellant essentially contends that the Veteran was exposed to asbestos during his naval service and as a result he developed asbestosis, which ultimately led to his death. 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, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) ("DVB Circular") provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 ("M21-1"), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols of these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that an asbestos-related disease can develop from brief exposure to asbestos. See M21-1, Part VI, 7.21(b), p. 7- IV-3. 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 Board notes that under the provisions of the M21-1, Part VI, occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. More recently, the Court has held that "neither Manual M21-1, nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. The appellant contends that the Veteran developed asbestosis as a result of asbestos exposure during active military service in the Navy. His service personnel records show that he served as a steward's mate aboard a ship during World War II during his first period of service as well as served as a steward's mate aboard ships from the World War II era during his second period of service. According to a May 2002 VA Memorandum, the Department of the Navy has advised VA that, in general, the service personnel records would not usually contain documents stating specifically whether or not a veteran was exposed to asbestos. Although it is acknowledged that there was asbestos onboard naval ships, the appellant has not provided information that the Veteran participated in activities nor work locations where he would have had significant exposure. Based upon known job duties, the Department of the Navy estimates that an individual with steward's mate occupation would have had a minimal probability of asbestos exposure. Given this estimate, and the fact that the appellant has not provided any information regarding the circumstances of the Veteran's service to suggest significant exposure, the Board concludes that the preponderance of the evidence is against finding that the Veteran was exposed to asbestos in service. In contrast, the record also shows that the Veteran worked in a glass factory prior to his second period of service from 1947 to 1950, where he did shipping, painting, and other odd jobs, including hauling materials from one department to the other and assisted with the bending and forming of glass. Also, the appellant informed VA that the Veteran's post-service occupation was as a fire fighter. Pertinently, the Department of the Navy estimates that a fireman risk of exposure to asbestos is highly probable. In addition, a February 2006 private treatment record notes the Veteran reported a medical history of hospitalization for smoke inhalation secondary to fire fighting and his treating physician specifically noted that the Veteran's asbestos exposure was secondary to his fire fighting. The Board finds that the Veteran's significant post service asbestos exposure greatly undermines the inherent plausibility that any incidental in-service asbestos exposure led to the diagnosed asbestosis. The Board will next determine whether the cause of the Veteran's death was otherwise directly related to his period of service. In this regard, the Board must consider whether the diagnosed disorders that caused the Veteran's death were incurred in or are otherwise related to an injury or disease in service. See 38 C.F.R. §§ 3.303, 3.312. Here, the weight of the medical evidence is against such findings. A review of service treatment records from both of the Veteran's periods of service does not show any treatment or diagnosis for chronic conditions involving the kidneys, heart or lungs. A November 1945 service treatment record shows that the Veteran was treated for an acute respiratory infection, but none of the subsequent service treatment records notes any chronic disorder involving the lungs. The Veteran had normal chest x-rays in August 1946, September 1950, and August 1951. The report of his August 1951 separation examination from his second period of service shows his heart, respiratory, and genitourinary systems were evaluated as normal and his urinalysis was negative. There also are no post-service treatment records that would indicate continuity of renal, heart or lung symptomatology after the Veteran's separation from his second period of service. There is no medical evidence showing that an onset of any renal, heart or lung-related problems, during the Veteran's period of service or within the first year after his separation from service. 38 C.F.R. §§ 3.303, 3.307. 3.309. The first post-service medical evidence of any lung disorders does not come until decades after his separation from service in 1988. A private surgical treatment record in December 1988 shows that the Veteran sought treatment for right lower lung tumor. Diagnostic testing at that time revealed findings consistent with asbestosis involving the right lung and diaphragm. Subsequent private diagnostic testing reports dated in 2006 show similar findings of asbestosis. Collectively, the subsequent private medical treatment records show that the Veteran had several serious medical conditions, including diagnoses of chronic obstructive pulmonary disease, emphysema, and chronic dyspnea, congestive heart failure, and diabetes mellitus. None of these private medical records contains any medical indication that the Veteran's renal failure, congestive heart failure and/or asbestosis disease were related to his period of service. Rater, as noted above, the Veteran's treating physician felt that the Veteran's asbestosis was secondary to asbestos exposure related to his post-service occupation as a fireman. The significant evidentiary gap between the Veteran's active service and the first diagnosis of any lung, heart or kidney-related problems, weighs heavily against the appellant's claim for service connection for cause of the Veteran's death on a direct basis. A lengthy period without treatment also is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). There is also no medical evidence establishing a possible relationship between any disorder that has been found to have caused or contributed to cause the Veteran's death and the Veteran's periods of active service. Other than the appellant's lay assertions that the cause of the Veteran's death was related to injuries sustained in service, the record is devoid of any evidence indicating a link between the cause of the Veteran's death and any event, or incident, of the Veteran's service. The Board is sympathetic to the appellant in that it is clear she believes her spouse's death was caused by his period of service. However, there is no probative lay or medical evidence of record that supports this contention. The Board acknowledges that lay evidence can be competent and sufficient to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). That notwithstanding, she has not asserted a continuity of symptomatology between service and the diseases identified as the underlying cause of death, and the appellant is not otherwise competent to provide an opinion as to etiology of the cause or contributing causes of the Veteran's death in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In sum, the evidence of record does not show findings indicative of renal failure, congestive heart failure, or asbestosis during the Veteran's periods of service, or within the first year after separation from service, and the preponderance of the evidence is against a finding that any of those diagnoses were causally related to his period of active service. For these reasons, the Board finds that service connection for the cause of the Veteran's death is not warranted. See 38 C.F.R. § 3.312. As the preponderance of the evidence is against the appellant's claim, the benefit of the doubt does not apply. See 38 C.F.R. §§ 3.102; Ortiz, 274 F.3d at 1365. The appellant's claim must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs