Citation Nr: 1341016 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-23 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had active service from July 1958 to June 1962. The Veteran died in January 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, a video conference hearing was held before the undersigned. The Board notes that the appellant has requested that her claim be advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013) due to advanced age. 38 U.S.C.A. § 7107(a)(2) (West 2002). Such motion is denied. However, as the decision below grants entitlement to the benefits sought on appeal, the denial of her motion to advance her claim on the Board's docket is non-prejudicial. FINDINGS OF FACT 1. The Veteran died in January 2010. The death certificate lists mesothelioma as the immediate cause of death. 2. At the time of the Veteran's death, service connection was not in effect for any disability. 3. The Veteran was exposed to asbestos in service, and resolving all reasonable doubt in the appellant's favor, the Veteran's mesothelioma, which is of service origin, was the principal cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting these decisions, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). 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). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes 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). With respect to claims involving asbestos exposure, there is no specific statutory guidance, nor has the Secretary of VA promulgated any regulations regarding development of such claims. However, VA has issued a circular on asbestos-related diseases, which has been incorporated into the VA Adjudication Procedure Manual. See DVB CIRCULAR 21-88-8, Asbestos-Related Diseases (May 11, 1998); VA Adjudication Procedure Manual Rewrite M21-1MR (VA Manual), Part IV, Subpart ii, Chapter 2, Section C, effective from December 13, 2005. The provisions stipulate that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See also Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). VA Manual at Part IV, Subpart ii, Chapter 2, Section C, Subsection (d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the law administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's death certificate shows that he died in January 2010. The certificate shows that the immediate cause of death was mesothelioma. No other condition is listed as an underlying cause or other significant condition contributing to death but not resulting in the underlying cause. The manner of death was natural cause. The Veteran's DD Form 214 shows that he had active service in the United States Navy, and that his military occupational specialty was deck hand. The appellant contends that the Veteran's death-causing mesothelioma is related to his service. Specifically, she claims that his active service aboard numerous ships involved exposure to asbestos, which contributed to the development of his mesothelioma which caused his death. Post-service evidence shows that the Veteran was diagnosed in 2008 with a malignant right pleural effusion with fibrous material. In a December 2008 private medical letter by Dr. S.H. Dikman, it was noted that the Veteran's post-service employment included working as a painter and sandblaster, working primarily commercial and industrial settings, with frequent exposure to asbestos containing fireproofing and joint compounds. It was noted that asbestos exposure is well documented to cause malignant mesothelioma and the non-calcified pleural plaque identified by CT scan (in June 2007) in the right hemithorax is typical of asbestos-related pleural disease and supports that the Veteran's asbestos exposure was significant. Clinical findings were diagnostic of malignant mesothelioma. Based on the evidence of record, it was opined "with a reasonable degree of medical certainty, that [the Veteran's] malignant mesothelioma was caused by his exposure to asbestos." In an April 2009 report by J.P. Delaney, PMP, CDR, identified as a retired naval officer, it was noted that the Veteran's duties included operating and maintaining deck machinery, including painting and repairs to the insulation on the steam piping. Based on a review of the evidence of record, it was opined that the Veteran would have had significant opportunity for exposure to asbestos thermal insulation aboard the ships on which he served. In a September 2009 deposition, the Veteran stated that his duties during his active service involved removing asbestos-containing materials. In an August 2010 VA examination report, it was indicated that there was no evidence of exposure to asbestos during service. There is also no evidence that exposure during service substantially contributed to or accelerated the Veteran's death from mesothelioma. The examiner based her conclusion on the premise that the Veteran's military specialties (seaman and boatswain's mate) are positions that have been determined to result in minimal probability of asbestos exposure. In an April 2011 VA addendum to the report, it was noted that the Veteran's asbestos exposure post-military would have been significant and that his exposure in the military would have been minimal based on the reports in the claims file. Thus, the examiner opined it was more likely than not the Veteran's mesothelioma was not due to or aggravated by asbestos exposure while on active duty in the Navy. At the outset, the Board notes that the Veteran's exposure to asbestos during service has been, and is, conceded. See, e.g., April 2011 VA examination addendum report. In addition, there is evidence that the Veteran was exposed to asbestos following his discharge from service. See December 2008 Dr. S.H. Dikman private medical letter. Moreover, the record contains both favorable and unfavorable evidence regarding the matter of a nexus between the Veteran's mesothelioma and any in-service asbestos exposure. Based on the evidence of record, resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran's mesothelioma was at least in part to his active service, to include his exposure to asbestos therein. The Board finds more probative the private medical opinions that the Veteran's mesothelioma was caused by his exposure to asbestos during service as they were accompanied by a more documented review of the evidence of record, and included a rationale for their conclusions. In contrast, the VA medical opinions are little more than cursory conclusions with little to no rationale to support their opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As there is therefore a definitive link between the Veteran's mesothelioma and his service and the cause of his death, the criteria for service connection for the cause of the Veteran's death have been met. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs