Citation Nr: 1338463 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-01 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to accrued benefits for service connection for the Veteran's bilateral hearing loss. 2. Entitlement to accrued benefits for service connection for the Veteran's pulmonary fibrosis. 3. Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served honorably from March 1943 to December 1945. He passed in January 1980. The Appellant is seeking benefits as his surviving spouse. At the time of his death his claims for service connection for bilateral hearing loss and pulmonary fibrosis were still pending. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. 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 June 2007. The cause of his death was pulmonary fibrosis. 2. At the time of his death, the Veteran was not service connected for any condition, but his claims for service connection for bilateral hearing loss and pulmonary fibrosis were pending. 3. The evidence does not establish the Veteran had bilateral hearing loss for VA purposes. 4. The evidence does not establish the Veteran's pulmonary fibrosis began during or was otherwise caused by his active service. 5. The evidence does not establish the Veteran's death was the result of his active service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is denied. 38 U.S.C.A. §§ 1110, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2013) 2. Service connection for pulmonary fibrosis is denied. 38 U.S.C.A. §§ 1110, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2013) 3. The Veteran's active service did not materially cause or substantially contribute to his death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Veteran's highly honorable service during World War II is not in dispute. The Appellant is seeking dependency and indemnity compensation following her husband's death, as well as accrued benefits for his pending claims for service connection. Under VA regulations accrued benefits to which the Veteran was entitled at death based on evidence in the file at death may be paid to the surviving spouse. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). Only evidence contained in the claims file at the time of the Veteran's death may be considered. Id. At the time of the Veteran's death in 2007 his filed claims for service connection for bilateral hearing loss and pulmonary fibrosis had not yet been adjudicated by the VA. Accordingly each claim will now be adjudicated by the Board based on the evidence of record at the time of the Veteran's June 2007 death. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 C.F.R. § 3.303(d). At the outset, the Board notes that the Veteran's service treatment records were lost in a fire-related incident. The Board is aware that when service treatment records are unavailable through no fault of the Veteran it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinksi, 1 Vet. App. 365, 367 (1991). In a July 2006 letter to the Veteran he was informed that VA did not have his service treatment records because they were destroyed in a fire in July 1973. Bilateral Hearing Loss The Veteran filed a claim for service connection for bilateral hearing loss in September 2006 asserting his hearing loss was secondary to noise exposure during his duties as crew chief of an aircraft during WWII. The Board does not doubt the Veteran was exposed to very loud noises during his honorable service in an aircraft during WWII and his exposure to acoustic trauma during active service is not in dispute. Unfortunately, the record does not include any evidence establishing the Veteran had hearing loss at any point. In filing his claim the Veteran asserted he had bilateral hearing loss, but did not provide any lay description of his degree of hearing loss. As discussed above, his service treatment records were destroyed and therefore the Board cannot determine if he experienced hearing loss during military service. The medical records included in the claims file do not reflect the Veteran sought any treatment or made any complaint of hearing loss at any point during the period on appeal. The Veteran was also scheduled for a VA examination regarding his claimed hearing loss but unfortunately he passed away before the examination was provided. As discussed above, entitlement to accrued benefits upon death of a Veteran may only be authorized based on the file at the date of death. 38 C.F.R. § 3.1000. Regrettably the evidence of record at the time of the Veteran's death does not establish he had any hearing loss at any point during the period on appeal. Because no disability on which benefits could be granted is established, the claim for service connection is denied. The best evidence in this case makes it less likely than not (a less than 50% chance) that, if the Veteran did have a hearing problem for VA purposes prior to his death (which is very unclear from this record as nothing in the record indicates a hearing "disability" for VA purposes following service), it was not related to his service from March 1943 to December 1945, decades earlier. Pulmonary Fibrosis The Appellate is also seeking accrued benefits for the Veteran's pending claim for service connection for pulmonary fibrosis. The Veteran filed this claim, originally claimed as a respiratory condition, on July 2006. The Veteran consistently asserted that his current respiratory condition was due to his inhalation of various chemicals and defoliants during his active service, particularly Paris green and DDT. The claims file includes a December 1944 "Letter of Commendation" recognizing the Veteran for flying malaria-control dusting and spraying planes during WWII. This letter continues that 40% of the Veteran's asserted 170 flying hours were spent on Paris green dusting and 4% was spent on DDT-oilspraying (an estimated 68 hours of flight time with Paris green and 7 hours flight time with DDT). Accordingly the Veteran's exposure to Paris green and DDT during his honorable active service is not in dispute. As discussed above, the Veteran's service treatment records are unavailable for review so the Board is unable to determine if the Veteran sought treatment for any respiratory condition during his active service. The medical evidence establishes the Veteran had extensive respiratory conditions near his end of life. He was diagnosed with pulmonary fibrosis in approximately 1999. In February 2006 he contracted pneumonia and although this condition was treated and resolved he continued to experience shortness of breath after this illness for the rest of this life. However, as will be discussed, the Board finds the evidence does not establish the Veteran's diagnosed pulmonary fibrosis began during or was otherwise related to his military service. Firstly, the Board notes the medical evidence establishes the Veteran had a history of heavy smoking from approximately 1945 to 1965. Although his service treatment records are not available, the claims file includes a normal chest x-ray from July 1984. As his chest was normal nearly 40 years after his separation from service, this x-ray suggests the Veteran did not experience a respiratory condition continuously since his military service or as the result of some exposure during service. Instead, the medical evidence suggests he was first diagnosed with a respiratory condition in approximately 1999, more than fifty years after his separation from service. Therefore the evidence does not establish his respiratory condition began during and continued since his active service. The Board notes that throughout his extensive treatment for his pulmonary condition the Veteran repeatedly reported he was exposed to Paris green and DDT during his military service. Most medical records merely noted the Veteran's report and did not provide any opinion as to whether his current condition was related to his active service, but the records that did provide a nexus opinion are discussed below. In October 2006 a private physician opined the Veteran's pulmonary fibrosis was "consistent with idiopathic pulmonary fibrosis/usual interstitial pneumonitis." This physician noted that Paris green is a "arsenic containing compound, copper, acetoarsentie" and opined it was "at least as likely as not" that the Veteran's current respiratory condition "could be" the result of inhalation of this arsenic containing compound during World War II. The physician continued: "Unfortunately, no mechanism would be available to confirm this." This same opinion was confirmed in December 2006 and March 2007, each time noting no mechanism was available to confirm the connection. This physician did not provide a clear opinion the Veteran's condition was the result of his chemical exposures during active service, but instead said his condition "could be" related. Medical opinions containing phrases like "could be" are speculative and are of no probative value. Bloom v. West, 12 Vet. App. 185, 186-87 (1999). Therefore the Board finds this medical report is speculative and not probative. In this regard, it is important for the appellant to understand that no one would suggest that this condition "could not be" related to service, therefore, for the doctor to say it "could be" says very little. The critical question in this case is whether it is at least as likely as not (50% or greater chance) not "could be" (not a 0% chance or, said, another way, "not impossible" ). In January 2011 a VA examination was provided. The examiner reviewed the Veteran's claims file, including his history of exposure to Paris green and DDT. The examiner cited to medical authority which stated restricted lung disease was noted with chronic arsenical compound exposure. However, the examiner stated because he did not know the duration of the Veteran's exposure to Paris green during active duty he could not give an opinion as to whether his pulmonary fibrosis was likely related to the spraying of chemicals during World War II. The examiner did opine that there was "no relation" between pulmonary fibrosis and DDT exposure per medical knowledge. In July 2013 the Board requested a medical expert opinion regarding whether the Veteran's pulmonary fibrosis was casually related to his exposure to Paris green during active service. In September 2013 the medical expert reviewed the Veteran's medical records, including his history of exposure to chemicals during active service. The expert opined the Veteran's pulmonary fibrosis was "idiopathic where an etiology was not discerned." The expert then opined his pulmonary fibrosis was not associated with exposure to chemicals during active service. The expert explained the Veteran did not develop lung disease until 1999 while he was last exposed in 1944 and "this lag in time excludes causality." Additionally, the expert noted that Paris green had been associated with arsenic toxicity but "the manifestations do not include pulmonary fibrosis." Finally, the expert reported after extensive research he found no reports which associated exposure to Paris green with interstitial lung disease or pulmonary fibrosis. He reiterated that no known etiology was identified for the Veteran's idiopathic pulmonary fibrosis. This medical expert reviewed the Veteran's complete claims file, provided a clear, unequivocal opinion, and provided a complete rationale for his opinion. Accordingly the Board finds this opinion provides provide evidence against the Appellant's claim. Based on the foregoing the evidence of record does not establish the Veteran's respiratory condition of pulmonary fibrosis began during or was otherwise caused by his military service. The Veteran was not diagnosed with his condition for more than 50 years after his separation from service and therefore his condition did not begin during military service. The probative medical evidence does not establish the Veteran's pulmonary fibrosis was due to his exposure to chemicals including Paris green and DDT during active service, as pulmonary fibrosis is not known to be associated with exposure to Paris green or DDT. As discussed above, the Board has considered the submitted positive nexus opinion however has determined the physician's opinion was speculative and therefore not probative. Accordingly, the probative evidence is against the Appellant's claim and the claim for accrued benefits is denied. Cause of Death The Appellant is also seeking dependency and indemnity compensation following her husband's death. To establish service connection for the cause of a veteran's death, the evidence must show that the disease which caused death was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 it 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. That is to say, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. As discussed, the Veteran passed away in June 2007. His death certificate lists the cause of death was pulmonary fibrosis which onset approximately eight years before this death. The death certificate does not list any other cause or significant condition which contributed to his death. The claims file does not include any additional medical information suggesting a different immediate cause of death or any contributing cause of death. As such, the evidence establishes the Veteran's primary cause of death was due to pulmonary fibrosis. As extensively discussed above the evidence does not establish the Veteran's pulmonary fibrosis was related to his active service and therefore does not establish service connection. The Appellant has consistently asserted that the Veteran's exposure to chemicals during his honorable service caused or contributed to his pulmonary fibrosis. As a lay person the Appellant is competent to report what comes to her through her senses, such as observing the Veteran's discomfort and difficulty breathing. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Appellant lacks the medical training and expertise to provide a complex medical opinion as to the cause of her husband's pulmonary fibrosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board does not doubt the Veteran's pulmonary fibrosis and difficulty breathing was painful for the Veteran and trying for the Appellant, as described in her October 2013 written statement. However, the probative medical evidence simply does not establish the Veteran's pulmonary fibrosis was began during or was otherwise due to his active service and, for reasons cited above, provides evidence against this claim of high probative weight. As discussed above, the Veteran was not diagnosed with his condition until about 50 years after his separation from service and the probative medical evidence does not establish the Veteran's pulmonary fibrosis was due to his exposure to chemicals including Paris green and DDT during active service. As discussed above, the Board has considered the submitted positive nexus opinion however has determined the physician's opinion was speculative and therefore not probative. Therefore the probative evidence does not establish the cause of the Veteran's death, pulmonary fibrosis, was due to his active service and the Appellant's claim for dependency and indemnity compensation is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise the claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed 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). In this case notice was provided by an August 2010 letter, which informed the Appellant of the notice required by the Pelegrini Court, as well as the additional DIC notice required by Hupp. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). As discussed above the Veteran and the Appellant were notified that the Veteran's service treatment records were unavailable, and no additional copies of these records were provided. VA and private post-service treatment records were obtained. Additionally, the Appellant was offered the opportunity to testify at a hearing before the Board, but she declined. A VA examination and expert medical opinion were also both provided in this case. The Board finds these reports were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Appellant's claims. The examiner and the medical expert both thoroughly reviewed the claims file and provided the information necessary to evaluate the appeals. Furthermore neither the Appellant nor her representative has voiced any issue with the medical reports. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Appellant in adjudicating this appeal. ORDER The claims are denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs