Citation Nr: 1504255 Decision Date: 01/29/15 Archive Date: 02/09/15 DOCKET NO. 12-19 436 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Counsel REMAND The Veteran had active service from July 1969 to July 1973. He died in April 2010 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Pursuant to 38 U.S.C.A § 1310, Dependency and Indemnity Compensation (DIC) benefits are paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A § 1310 (West 2014); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2014). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran's death should be service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). The Veteran died in April 2010 and his sole cause of death was listed on his certificate of death as malignant neoplasm of bronchus and lung. At the time of his death, he was not service connected for any condition. In May 2010, the appellant filed a claim for DIC benefits, and in support of her claim, she asserted that the Veteran had asbestos exposure while serving as a boiler technician during military service, and this exposure contributed and led to the subsequent development of his small cell lung cancer. The Board notes there are no laws or regulations specifically dealing with asbestos and service connection. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993) (noting that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases; nor has the Secretary promulgated any regulations). However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In 1988, VA issued the Department of Veterans Benefits (DVB) Circular 21-88-8, which provided guidelines for considering asbestos compensation claims. See DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates in 2005 and 2006. See VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1MR), Part IV, Subpart ii, Ch.2 Section C, Topic 9 (Dec. 13, 2005) and Section H, Topic 29 (Sep. 29, 2006). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. They further specify that asbestos fibers may produce asbestosis, pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1MR, Part IV.ii.2.C.9. In the August 2011 rating decision, the RO conceded the Veteran's in-service asbestos exposure, taking note of the service records, which confirmed that his military occupational specialty (MOS) was that of boiler technician during his military service. In this regard, the Veteran's service personnel records confirm that he served aboard the USS Sylvania, and that his primary duties were that of a boiler technician. As such, the Veteran has been identified as having highly probable exposure to asbestos in service. The Veteran underwent a computed tomography (CT) scan of the chest in May 2009, the results of which revealed a "[p]artially obscured 4.5 cm [centimeter] left perihiliar mass with massive left hilar and AP window region mediastinal metastatic adenopathy consistent with primary left upper lobe neoplasm." A subsequent surgical pathology report dated in May 2009 reflects that the Veteran underwent a bronchial biopsy of the right upper lobe, the findings of which revealed small cell carcinoma. Report of the May 2009 consultation at MidMichigan Physicians Group, which took place a little over one week after his diagnosis, reflects that A. A-M., M.D., was asked by the Veteran's treatment provider to evaluate him for management of his lung cancer. Upon reviewing the Veteran's medical history, Dr. A-M. noted that the Veteran had a history of heavy smoking, and had reportedly been smoking more than half a pack of cigarettes a day for the past forty years. Based on his review of the diagnostic test results, as well as his evaluation of the Veteran, Dr. A-M. assessed the Veteran with small cell lung cancer, unknown stage, and ordered that the Veteran undergo a PET CT scan to determine the severity and extent of his lung cancer. During a June 2009 follow-up visit, Dr. A-M. reviewed the diagnostic test results with the Veteran, and determined that in light of the results reflecting metastatic small cell lung cancer to the hilar, mediastinum and left adrenal gland, the Veteran's small cell lung cancer was at an extensive stage. After undergoing a few months of chemotherapy at MidMichigan Physicians Group, the Veteran's diagnosis was modified to limited stage small cell lung cancer, and by the date of his last chemotherapy session in September 2009, he reported to be doing well and exhibited a good response to his radiation treatment. Although the Veteran remained in good condition for the next few months, during a March 2010 follow-up visit, a CT scan of his chest revealed a recurrence of the small cell lung cancer. He subsequently opted for hospice care rather than further medical treatment, and passed away soon thereafter. In August 2011, a VA medical opinion was obtained for the purpose of determining whether it was at least as likely as not that the Veteran's lung cancer was incurred in service, to include as due to his in-service asbestos exposure. After reviewing the Veteran's claims file, the VA reviewer determined that the Veteran's small cell lung cancer was less likely than not incurred in or caused by his in-service asbestos exposure. In reaching this conclusion, the VA reviewer relied on the May 2009 cytology and bronchial biopsy reports, which were both absent any evidence of asbestos fibers or mesothelioma. The VA reviewer also referenced the "medical literature," which reportedly indicated that most cases of small cell lung cancer are due to cigarette smoke, and are rare in those who have never smoked. In addition, the VA reviewer based her conclusion on the fact that the Veteran had a 40+ year history of heavy tobacco use. The VA reviewer explained that mesothelioma is the type of cancer caused by asbestos exposure, and the most common site of occurrence of mesothelioma in the lungs is in the pleural lining of the lung. According to the VA reviewer, review of medical findings was absent any evidence of cancer in the pleural lining of the lungs. Based on her review of the evidence, the VA reviewer determined that the Veteran's in-service asbestos exposure did not cause or significantly contribute to his cause of death, which was malignant neoplasm of the bronchus and lungs. Although the VA reviewer provided a detailed rationale in support of her opinion, and cited to medical articles that purportedly related the majority of small cell lung cancer cases to cigarette smoke, she did not provide copies of the medical literature relied upon; nor did she provide a citation or website address for these articles. In light of the fact that her opinion, in large part, is based on the substance of this medical literature, the Board finds that either documentation of, or a citation for, the literature is necessary to help support and corroborate her determination. Moreover, in noting that the medical literature relates most cases of small cell lung cancer to cigarette smoke, and that such a diagnosis is rare in those who have never smoked, the VA reviewer alludes to the possibility that a small percentage of small cell lung cancer cases are still attributed to other factors, to include asbestos exposure. Furthermore, the Board is left to question whether there are cases of small cell lung cancer being at least in part attributed to asbestos exposure in those whose history may include a combination of both asbestos exposure and cigarette smoke. The reviewer did not address this scenario. Furthermore, in stating that the type of cancer caused by asbestos exposure is mesothelioma, the Board is unclear as to whether mesothelioma is 1) the only type of cancer of the lung caused by asbestos exposure; and if not 2) whether small cell lung cancer can also be caused by asbestos exposure. Indeed, in a June 12, 2009 discharge report following the Veteran's bronchoscopy, information pertaining to the Veteran's diagnosis indicated that one of the possible causes of the Veteran's lung cancer was asbestos exposure, among other reasons. If VA undertakes to provide a medical examination, the Board must ensure that such examination is adequate. See Barr v. Nicholson, 21 Vet. 303, 311. In this case, the Board does not find the August 2011 VA examiner's opinion to be complete because she did not provide documentation or a citation in support of the medical literature she referenced as the basis for her opinion. Also, in providing her opinion, the Board still finds that additional questions remain with regard to what types of cancers affecting the lungs are predominantly caused by asbestos exposure, as opposed to other factors, such as cigarette smoke. In light of the fact that the evidence remains unclear as to whether and to what effect the Veteran's asbestos exposure had on his cause of his death, a remand is necessary for another opinion. 38 C.F.R. § 3.159(c)(4)(i) Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to a physician with expertise in oncology, particularly lung cancers. The claims file, a copy of this remand, and all records on Virtual VA, must be provided to and reviewed by the medical reviewer prior to his/her providing an opinion. After this review, the reviewer should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's small cell lung cancer was causally or etiologically related to his military service, specifically to include his in-service asbestos exposure. The reviewer should also discuss 1) what type of cancers of the lung are caused/attributed to asbestos exposure; and 2) whether small cell lung cancer in general can be attributed to a history of asbestos exposure even in cases where there has been a significant smoking history. The reviewer should then comment on the specifics of this case--whether it is at least as likely as not that the Veteran's in-service asbestos exposure was at least a contributory cause of his death. A complete rationale for any opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. (The term "contributory cause of death" means one inherently not related to the principal cause which contributed substantially or materially to cause death; which combined to cause death; or which aided or lent assistance to the production of death. It is not sufficient that a disorder may have casually shared in producing death, but rather there must be a causal connection.) If the reviewer determines that he/she cannot provide an opinion on any of the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the reviewer be undertaken so that a definitive opinion can be obtained.) 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue on appeal. If the benefit sought is not granted, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).