Citation Nr: 1406832 Decision Date: 02/18/14 Archive Date: 03/04/14 DOCKET NO. 11-11 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to December 1967. He died in November 2002. His surviving spouse is the appellant in this claim. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Appellant testified at a hearing at the RO before a Decision Review Officer (DRO) in December 2011. She later testified before the undersigned Veteran's Law Judge (VLJ) in a video-conference hearing in September 2013. Transcripts of both hearings are contained in the claims file and have been reviewed. The Board has also reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The Veteran died from stage IV non small cell carcinoma of the lung. 2. At the time of his death, he had no service-connected disabilities. 3. He had minimal risk of asbestos exposure while in the Navy. 4. An etiological relationship between potential asbestos exposure and his eventual cause of death has not been established. CONCLUSION OF LAW The criteria for establishing service connection for cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). 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 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). Here, the Appellant was provided with the relevant notice and information in October and December 2009 letters prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). She has not alleged any notice deficiency during the adjudication of her claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has a duty to assist the Appellant in the development of her claim. This duty includes assisting in the procurement of any pertinent treatment records and obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). All available service treatment records (STRs) and VA treatment records have been associated with the claims file. The RO sought and received a VA medical opinion, the report of which contains a description of the history of the condition at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the deceased Veteran's lung cancer. VA's duty to assist with respect to obtaining relevant records and a medical opinion has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at both RO and video-conference hearings. The hearings were both adequate as the DRO and VLJ whom conducted the hearings explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Merits of the Claim The Veteran's Certificate of Death showed that he expired in November 2002 of stage IV non-small cell lung cancer. At the time of death, the Veteran was not service connected for any disabilities. The Appellant alleges that the Veteran's death is due to in-service asbestos exposure dating back to his time serving as both a seaman and later a storekeeper aboard a Navy vessel. The law provides DIC benefits for a spouse of a deceased Veteran even if he was not service connected for it at the time of his passing. See 38 U.S.C.A. § 1310. In this situation, "the DIC claimant must establish service connection for the cause of the veteran's death." Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). Thus, the same standards, theories, and criteria for service connection are used. Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a claimant must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain conditions, including malignant tumors (so cancer), will be presumed to have been incurred in service if manifested to a compensable degree, generally meaning to at least 10-percent disabling, within one year after discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In this case, the Veteran's first lung cancer diagnosis came over 30 years after his separation from service, so the presumption is not available to establish entitlement to service connection for this disease. In order to grant a claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the claimant prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When 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(b); 38 C.F.R. § 3.102. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board notes that 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. These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3; see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolarygneal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. See id. It is also noted 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 (January 31, 1997). 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. The CAVC 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. To this point, the Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See M21-1MR, Part VI, Subpart ii, Chapter 2, Sec C (9)(h). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1MR, Part VI, Subpart ii, Chapter 2, Sec C(9)(h). Review of the Veteran's personnel files reveal he served as both a seaman and a storekeeper while in the Navy. The RO determined that the potential for asbestos exposure for those positions was minimal. Review of the Veteran's STRs does not reveal any evidence regarding asbestos exposure. Furthermore, there are no lay statements preceding his death detailing said exposure. For this purposes of this decision the Board will assume that the Veteran was exposed to asbestos during service, but this is not conceded. As there is no disputing the Veteran's cause of death and the possibility, however remote, of asbestos exposure, the inquiry then shifts to whether there is probative evidence establishing a nexus between potential exposure and the cancer. The Appellant submitted a statement from a private doctor in November 2009. This doctor was the Appellant's physician and stated that he had never met the Veteran. There is no indication that the doctor reviewed the Veteran's claims file or any of the medical evidence contained therein. The doctor stated that the Appellant asked him to research and comment on the Veteran's service aboard the USS Harry Yarnell. He stated that "it is...common knowledge that asbestos would have been used on [the Veteran's] ship...as a fire retardant." He further states that there is no doubt in his mind that the Veteran was exposed to asbestos while aboard the ship. The doctor then stated that asbestos exposure increases the risk of lung cancer and is most commonly associated with mesothelioma. However, he stated that, "according to my research through the American Cancer Society, asbestos has been linked to the development of non small cell carcinoma of the lung." He then opines: After thorough research and evaluation of [the Veteran's] medical disease that killed him, I believe that it is possible that asbestos exposure played a part in the development of his lung cancer. Even more, I can say with reasonable medical certainty that his exposure to asbestos played a part in the development of his lung cancer. I base this decision on my general understanding of the development of lung cancer and risk factors associated with it. A VA medical opinion was solicited in March 2013. The examiner indicated that the Veteran's claims file was reviewed. She concluded that the Veteran's lung cancer was less likely than not (less than 50 percent probability) incurred in or caused by any asbestos exposure while in the military. She detailed the Veteran's diagnosis of squamous cell carcinoma of the right neck and eventual resection of a mass in 1998. She then detailed his initial diagnosis of the Veteran's non small cell carcinoma of the lung in 2000. She also noted that the Veteran smoked two packs of cigarettes per day "for about forty years and [then] he stopped smoking about when he was diagnosed with lung cancer." The examiner then summarized an American Journal of Clinical Pathology article titled "Criteria for Attributing Lung Cancer to Asbestos Exposure." The article details the synergistic effect of asbestos exposure with tobacco smoke, including the fact that while some individuals possess both etiological agents, their lung cancers are due to exclusively to their tobaccos use, "like the overwhelming majority of the patients with lung cancer in the general population." The article also states that "[w]orkers with asbestos-related lung cancers usually will have asbestos bodies on tissue sections of their lung parenchyma...[m]any also coincidentally will have pleural plaques." Thus, any history of asbestos exposure must be detailed and comprehensive. The examiner goes on to state that, "[a]fter much debate, the medical community now believes the presence of asbestosis is a reliable diagnostic marker that a patient has received enough asbestos exposure to develop lung cancer." According to the above mentioned article, "[a]sbestosis establishes the link between a lung cancer and asbestos exposure even when the patient also was a tobacco smoker." The examiner further stated that in the absence of a better marker, "the only consistently reliable marker for an asbestos-related lung cancer is asbestosis, especially in asbestos workers who are also tobacco smokers." The examiner then stated that the Veteran did not have any evidence of asbestosis on any chest x-ray, nor did he have any clinical evidence of asbestos exposure prior to the diagnosis of his lung cancer. She then stated reasoned that the Veteran had a "strong" history of smoking, along with a minimal probability of asbestos exposure while in the Navy. The Board places the most weight on the March 2013 VA opinion. It is based upon sufficient facts, including those contained in the Veteran's claims file, is the product of reliable principles and methods, and is the result of applying these principles and methods, namely the cited medical literature detailing the synergy between asbestos exposure and tobacco use in the formation of lung cancer, to the facts of the Veteran's case. See Nieves-Rodriquez, 22 Vet. App at 302. The private opinion submitted in support of the Appellant's claim is very general and based on internet research. Furthermore, the doctor gave no indication he reviewed the Veteran's medical files, including those detailing his lung cancer, and thus did not explain away any absence of asbestos-related lung cancer indicators that the Veteran exhibited. With the most weight placed on the VA examiner's opinion, the preponderance of the evidence is against the Appellant's claim for service connection for the cause of the Veteran's death, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b). Accordingly, the claim must be denied. ORDER Entitlement to service connection for the Veteran's cause of death is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs