Citation Nr: 1437563 Decision Date: 08/22/14 Archive Date: 08/27/14 DOCKET NO. 12-03 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for lung cancer for accrued benefits purposes. 2. 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 J. Taylor, Associate Counsel INTRODUCTION The Veteran had active service with the United States Navy from March 1963 to March 1967. He died in March 2010. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2014, the appellant was afforded a hearing before the undersigned via videoconference from the RO. A copy of the transcript has been associated with the claims folder. At the June 2014 videoconference hearing, the appellant submitted additional evidence with a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2013). The Virtual VA paperless claims processing system contains a transcript from the appellant's videoconference hearing dated in June 2014. Other documents on the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not include any documents at this time. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's lung cancer was incurred in or aggravated by active service, specifically, his conceded exposure to asbestos. 2. The Veteran died in March 2010; the primary cause of death was non-small cell lung cancer. 3. Resolving all reasonable doubt in the appellant's favor, the Veteran's lung cancer contributed substantially or materially to cause his death. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer are met. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.1000 (2013). 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the appellant. II. Service Connection - Accrued Benefits Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). For a surviving spouse, children, or dependent parents to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, the law also provides that an application for accrued benefits must be filed within one year after the date of a veteran's death under 38 C.F.R. § 3.1000(d)(5). While an accrued benefits claim is separate from a veteran's claim filed prior to death, the accrued benefits claim is derivative of that Veteran's claim; thus, an appellant takes a veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Therefore, in order for a claimant to be entitled to accrued benefits, a veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a) (West 2002); see also Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In order to establish service connection, the evidence must generally show: (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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Malignant tumors are listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, any malignant tumors can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, such may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. See also VAOPGCPREC 4-00 (Apr. 13, 2000). In this regard, the M21-1 MR specifically includes lung cancer in its non-exclusive list of asbestos-related diseases/abnormalities. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The Manual M21-MR acknowledges that inhalation of asbestos fibers and/or particles can result in a wide array of medical issues, most commonly interstitial pulmonary fibrosis, or asbestosis. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). VA must determine whether there is evidence of exposure before, during, or after service; and whether the disease is related to exposure in service. See Dyment, 13 Vet. App. 141; Nolen, 12 Vet. App. 347. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and the development of the disease. Additionally, an asbestos-related disease may develop due to brief exposure. In the instant case, the Veteran had a claim for VA benefits pending at the time of his death. As discussed above, the appellant is his surviving spouse. It is initially noted that the Veteran died in March 2010 and the appellant's formal claim on VA form 21-534, which includes a claim for accrued benefits for a surviving spouse, was received by VA in June 2010. As such, the appellant's application for accrued benefits was received within one year after the date of the Veteran's death. Accordingly, under 38 C.F.R. § 3.1000, the appellant's claim was timely filed. The appellant essentially contends that the Veteran's fatal non-small cell carcinoma of the lung was caused by exposure to asbestos while serving in the United States Navy, and service connection for lung cancer is thus warranted. She contends that the Veteran was exposed to asbestos while serving as a Seaman with the Deck Division on the USS Robert A. Owens (DD 827). The Veteran's military operational specialty was that of a laundryman. The appellant argues that the Veteran's only exposure to asbestos was in the United States Navy. After considering the evidence above, and after resolving all reasonable doubt in the appellant's favor, the Board finds that the evidence is at least in equipoise and service connection for lung cancer for purposes of accrued benefits is warranted. At the outset, the Board notes that in adjudicating an accrued benefits claim, only evidence of record at the time of the Veteran's death on March 13, 2010, may be considered. 38 C.F.R. § 3.1000. Therefore, none of the medical opinions provided after that date may be considered in the adjudication of the claim for service connection for lung cancer for purposes of accrued benefits. The first requirement for direct service connection, evidence of a current disability, has been met. There is no dispute that the Veteran had lung cancer. The claims file contains treatment records detailing the course of the Veteran's lung cancer. The Veteran was diagnosed with a supraglottic squamous cell carcinoma in 2007 and squamous cell carcinoma of the lung in 2009. Subsequent to the diagnoses, the Veteran underwent extensive treatment, including surgery, for lung cancer. Additionally, a surgical pathology report dated in April 2009 also showed lung tissue with emphysematous change, interstitial fibrosis, and fibrous adhesions. The second requirement for direct service connection, evidence of disease or injury in service, is also met. Based on the above, the Board concedes that it is as likely as not that the Veteran was exposed to asbestos, most likely while serving as a Seaman with the Deck Division on the USS Robert A. Owens, during his service from September 1964 to February 1967. The Board now turns to a discussion of the third requirement of direct service connection, a causal relationship between the Veteran's lung cancer and service, specifically, in-service asbestos exposure. In July 2009, the Veteran's treating physician, Dr. R.W., indicated that the Veteran was recently diagnosed with a second primary malignancy. Dr. R.W. noted that the Veteran had a history of a supraglottic squamous cell carcinoma in 2007, and, most recently was diagnosed in 2009 with squamous cell carcinoma of the lung. Dr. R.W. wrote that the Veteran was exposed to possible carcinogens while onboard a ship during his service in the United States Navy. He found that given the Veteran's exposure, and the significance of one person developing two primary malignancies, it seems possible that his service may have contributed to the development of his malignancies. In a follow-up letter dated in November 2009, Dr. R.W. repeated his rationale from the July 2009 letter and opined that it was as likely as not that the Veteran's cancer illness was related to his active duty service. In a VA opinion dated in February 2010, the examiner noted that based on the Veteran's lay statements and his military occupational specialty as a laundryman, one can only assume that he may have been exposed to asbestos fibers in service; He noted, however, there was no documentation to confirm this exposure. The examiner noted that when a person was exposed to asbestos, the latency period was usually more than 20 years. He listed the lung disorders that asbestos can cause, which included lung cancer. The examiner found, however, that the Veteran's lung cancer was more likely related to his history of smoking. While there is no evidence or assertion that the Veteran developed lung cancer during service or to a compensable degree within one year of separation from service, or demonstrated continuous symptoms of lung cancer from separation from service, based on the evidence of record, and resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran's lung cancer was at least in part due to his active service, to include his exposure to asbestos therein. In reaching this conclusion, the Board notes that the record contains both favorable and unfavorable evidence regarding the matter of a nexus between the Veteran's lung cancer and any in-service asbestos exposure. The Board has considered that the Veteran's private physician treated the Veteran for many years and was aware of his pertinent medical history when he provided the favorable nexus opinion. The Board has also considered that the Veteran's post-service employment history was silent for asbestos exposure; he had a history of smoking; and significantly, VA has considered lung cancer an asbestos-related disease. The Board further observes that the Manual M21-MR acknowledges that inhalation of asbestos fibers and/or particles can result in a wide array of medical issues, most commonly interstitial pulmonary fibrosis, which was shown on the April 2009 surgical pathology report. As there is therefore a link by a competent medical opinion between the Veteran's lung cancer and his service, the Board finds that the criteria for service connection for lung cancer, to include as due to asbestos exposure, have been met. In this circumstance, all reasonable doubt is resolved in the appellant's favor and the claim of entitlement service connection for lung cancer, for accrued benefits purposes, is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Cause of Death In order to establish service connection for the cause of a 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 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). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). The Veteran's March 2010 death certificate indicates that he died from non-small cell lung cancer. The appellant seeks service connection for the cause of the Veteran's death. As determined above, service connection for lung cancer is warranted, for accrued benefits purposes. In essence, service connection was in effect at the time of the Veteran's death in March 2010. In light of the fact that the Veteran was service connected for lung cancer at the time of his death and non-small cell carcinoma of the lung, or lung cancer, was listed on his death certificate as a cause of his death, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49, at 53. ORDER Entitlement to service connection for lung cancer for accrued benefits purposes is granted. Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs