Citation Nr: 1506879 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 13-00 117A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell INTRODUCTION The Veteran had active service in the U.S. Navy from May 1944 to March 1946. This matter came before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified before the undersigned at a videoconference hearing in June 2013 and a transcript thereof is contained within Virtual VA. In addition to the paper claims file, there are paperless, electronic claims files, Virtual VA and Veterans Benefits Management System (VBMS) associated with this appeal, a review of which does not reveal anything pertinent to the present appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran had active service in the U.S. Navy from May 1944 to March 1946, having served aboard the U.S.S. Hansford and is presumed to have been exposed to asbestos. 2. The Veteran died in September 1999 and the immediate cause of death as listed on the death certificate was lung cancer, with no contributory cause being listed. At his death he was not service-connected for any disability. 3. Lung cancer not incurred in or aggravated by in service, was not diagnosed until many years after service, and is not causally related to an incident of service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1310, 5107(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA an obligation to notify claimants what information or evidence is needed for claim substantiation prior to an initial unfavorable decision but, if not, any such error may be cured by providing notice followed by readjudication, e.g., in a supplemental statement of the case (SSOC). Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In service connection claims, the VCAA imposes a duty to inform a claimant of all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Also, the VCAA imposes a duty to assist claimants by making reasonable efforts to get needed evidence. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Here, the RO provided the Veteran with notice of the elements required for claim substantiation and of the respective evidence gathering duties by letter in April 2012, prior to the July 2012 adjudication of the claim for service connection for the cause of the Veteran's death. It also provided notice of how disability ratings and effective dates are assigned. Dingess, Id. In Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), the Court held that in the context of a claim for DIC benefits, the section 5103(a) notice must include: (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for the cause of a veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. This information was also included in the April 2012 correspondence to the appellant. As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation. The Veteran's service treatment records (STRs) have been obtained. His VA clinical records are on file, as are his private treatment. A VA medical opinion was obtained in this case. See 38 U.S.C.A. § 5103A(a) and Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) and DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The Board may thus assume the competence of VA examiners and the adequacy of a VA medical opinion unless either is challenged. Here, the adequacy of the opinion is not challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010). The appellant testified in support of his claim at a videoconference in June 2012 before the undersigned Acting Veterans Law Judge. 38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked but does not require providing such information as to equate with preadjudication of any claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). However, the requisite duties do not mandate that at a hearing or videoconference that there be a preadjudication of the claim. At the videoconference, the issue on appeal was identified and the representative and the undresigned specifically elicited testimony from the appellant as to the Veteran's relevant clinical history and elements for claim substantiation. The hearing focused on the elements necessary for claim substantiation and the appellant, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation. Thus, the Board finds that, consistent with Bryant, Id., the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. At the videoconference hearing the appellant and her representative indicated that the ship upon which the Veteran served during World War II had been in the waters off the shore of Japan, indicating more specifically that due to this he may have been exposed to radiation. From this, the Board concludes that this is an allegation that such putative in-service ionizing radiation exposure led to the Veteran's fatal lung cancer. However, the regulations governing the matter of in-service ionizing radiation exposure address the presence of Veteran's at or near either Hiroshima or Nagasaki, Japan, and not the off shore waters of Japan, including Tokyo harbor. Accordingly, no further development of this aspect of the case is warranted. Also at the videoconference hearing the appellant testified that the Veteran had informed her that he had been under stress in his job as a cook onboard a U.S. naval vessel, one which had participated in the landings at Iwo Jima. It was suggested that from this he might have developed post-traumatic stress disorder (PTSD) which, in turn, led to his smoking of tobacco products as a means of coping or relieving this stress. However, the appellant further testified that she did not known when the Veteran had first begun smoking cigarettes, i.e., before, during or after his military service, and had not known him during his military service. Moreover, there was no testimony, and there is otherwise no evidence, that the Veteran participated in any combat at or near Iwo Jima or any other battle site when performing his duties as a ship's cook. In fact, the record is totally devoid of any evidence which indicates that the Veteran may possibly have had a psychiatric disability at any time. Accordingly, no further development of this aspect of the case is warranted. As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of any cough, during service will permit service connection for pulmonary diseases first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including cancer, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms to establish service connection is limited to only those diseases listed at 38 C.F.R. § 3.309(a). 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 133, 1338 (Fed.Cir. 2013). Dependency and indemnity compensation benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a)(1). 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). Analysis The appellant claims that the Veteran's fatal lung cancer, which caused his death in September 1999, was due to asbestos exposure in service while aboard the U.S.S Hansford. The Veteran's service records demonstrate that he did serve aboard the U.S.S. Hansford. The Board acknowledges the information submitted by the appellant which indicates that a number of U.S. Navy ships had a high probability of containing asbestos. With reasonable doubt resolved in favor of the appellant on this point, the Board finds the Veteran was exposed to asbestos. 38 C.F.R. § 3.102. Thus the issue for resolution is whether the Veteran's lung cancer, shown by his death certificate to have caused his death, has any relationship to service, including asbestos exposure. In this regard, the STRs are negative for any pulmonary disability and any cancer, and no pulmonary disability or cancer are shown until decades after termination of the Veteran's honorable military service. The evidence does not reflect, and the Veteran does not contend, that there were complaints, symptoms, treatment, or diagnoses relating to any pulmonary disability or cancer in-service or for many years thereafter. Following the Veteran's hospitalization and treatment in 1973 for a left leg fracture, VA clinical records in 1973 note that he smoked one pack of cigarettes daily. Private clinical records show that the Veteran was first diagnosed with lung cancer in 1998 and that after unsuccessful radiation treatment he died in 1999. The death certificate shows that the Veteran died on September 1999 and the immediate cause of death was lung cancer. There was no listed contributory cause of death and at his death the Veteran was not service-connected for any disability and did not have any claim pending for any VA compensation or benefit. In light of the appellant's contention a VA medical opinion was obtained in June 2012. The physician, a VA staff physician in pulmonary medicine, noted the contention that in-service asbestos exposure caused the Veteran's fatal lung cancer. It was noted that the Veteran had about 2 years of naval service, with duties as an aviation support technician and probable asbestos exposure but his duty as a steward's mate indicated minimal probability of asbestos exposure. It was noted that the service medical records were negative for a respiratory condition and pulmonary findings on the discharge physical examination were within normal limits. Also, a photoflurogram of the chest was negative for any abnormality. After service, the Veteran had no occupations from which further asbestos exposure could be inferred. However, clinical records in 1973 described a regular smoking habit of one pack of cigarettes per day for an extended period. A needle biopsy of a lung mass in 1998 revealed adenocarcinoma, and pulmonary function studies were consistent with severe chronic obstructive pulmonary disease (COPD). The COPD precluded surgical resection of the mass and, ultimately, radiation therapy was unsuccessful. The death certificate confirmed the cause of death as being lung cancer. The VA physician stated that although exposure to asbestos products is considered a co-carcinogen, the length of time and the intensity of exposure must be much greater than that in this Veteran's case to be significant. The scientifically accepted causation of lung cancer in the great majority of cases is heavy cigarette smoking, as was present in the patient's past history. Therefore, it was considered less likely than not, less than 50 percent probability, that this Veteran's fatal lung cancer was caused by exposure to asbestos products while in active military service. At the videoconference hearing, the appellant testified that she recalled the Veteran sometimes say that as a cook on his naval ship he would sometimes cough and become out of breath. Prior to his death he had smoked, but not a pack of cigarettes per day. He had been a cook during service and had thus been exposed to asbestos. She had not known the Veteran at the time of his military service and, so, was unaware of his smoking habits, if any, at that time. In weighing the evidence the Board notes that the appellant has submitted information from the Internet indicating that the two types of cancer caused by asbestos exposure are mesothelioma and lung cancer. The physician, who reviewed the claim file, explained the reasons for the conclusion and the opinion is thus entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Further, to the extent that the appellant is competent to opine on this complex medical question consisting of knowledge of how exposure to certain chemicals affects the development of disease processes in the lungs, the specific opinion of the trained medical professional who provided the June 2012 VA opinion is of greater probative weight than the appellant's more general lay assertions. As the preponderance of the evidence thus reflects that the Veteran's fatal lung cancer was is not related to service, including exposure to asbestos, radiation, or any psychiatric disorder, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs