Citation Nr: 1543615 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 09-29 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran had active naval service from November 1952 to October 1956. The Veteran died in April 2008. The appellant is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). When this case was most recently before the Board in March 2012, the issue was remanded for additional development and adjudicative action. The case has since been returned to the Board for further appellate action. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). FINDINGS OF FACT 1. The Veteran died in April 2008 from the effects of mesothelioma. 2. Service connection for mesothelioma was not in effect at the time of the Veteran's death. 3. Mesothelioma was not present until more than one year following the Veteran's discharge from service and was not etiologically related to service, to include asbestos exposure in service. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a claim for death and indemnity compensation (DIC) under 38 U.S.C.A. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C.A. § 5103(a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The appellant was provided all required notice in a letter sent in June 2008, prior to the initial adjudication of the claim. The record also reflects that service treatment records, service personnel records, and all available post-service medical evidence identified by the appellant have been obtained. Additionally, efforts were made to corroborate the appellant's assertion that the Veteran was exposed to asbestos during his naval service. The Board acknowledges that no medical opinion has been obtained in response to the appellant's DIC claim; however, the Board finds that such an opinion is not necessary to decide the claim. As will be discussed below, there is no in-service injury, disease or event to which mesothelioma could be related. Absent some evidence of a recognizable in-service, injury, disease, or event to which a competent medical opinion could relate the cause of death, there is no reasonable possibility that a opinion could aid in substantiating the current claim. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(d). Neither the appellant nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Death and indemnity compensation benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2015). Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a malignant tumor to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases; however, the VA Adjudication Procedures Manual, M21-1 Manual Rewrite (M21-1MR) addresses asbestos-related compensation claims. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section I, and Part IV, Subpart ii, Chapter 2, Section C. VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related diseases under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1MR provides that VA must determine whether service records demonstrate evidence of asbestos exposure in service, and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. The M21-1MR provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx, and urogenital system. The M21-1MR also lists some of the major occupations involving exposure to asbestos, such as mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacturing and servicing of friction products, and manufacturing and installation of products such as roofing and flooring materials and military equipment. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The certificate of death indicates that the Veteran died in April 2008 due to sepsis, which was due to or a consequence of acute renal failure, which was due to or a consequence of mesothelioma. At the time of the Veteran's death, service connection was in effect for duodenal ulcer, cellulitis as a residual of infected right leg wound, bilateral tinnitus, and bilateral hearing loss. The appellant contends that the Veteran's mesothelioma was related to exposure to asbestos aboard the U.S.S. Strong, to include while working on the ship while it was overhauled at the Charleston Naval shipyard in 1953. Service personnel records show that the Veteran served on the U.S.S. Strong from December 31, 1953, until September 1956. In January 2006, the Veteran reported that he worked as a radarman on the U.S.S. Strong on the first level of the ship adjacent to a gun mount. In connection with a November 2007 VA pulmonary consultation, the Veteran denied any history of exposure to asbestos in the Navy, noting that he "was up in the deck all the time." A February 2008 VA treatment note reflects that the Veteran was diagnosed with malignant pleural mesothelioma and that the Veteran was retired from a job with Bethlehem Steel, did not smoke, and may have been exposed to asbestos over a three month period when his ship was in a dry dock during active service. In a February 2008 application for benefits, the Veteran reported having a history of mesothelioma since November 2007 and that he was not exposed to asbestos in service. Treatise information submitted on the history of the U.S.S. Strong report that the vessel underwent a shipyard overhaul at the Charleston Naval Shipyard then proceeded to Guantanamo Bay for refresher training after returning from a four month tour of duty in the Korean Theater in mid-1952. The treatise further notes that the vessel departed Norfolk, Virginia, for another tour on January 4, 1954. Additional treatise information submitted in October 2008 notes that naval destroyer ships were often insulated by asbestos. In July 2008, the appellant filed a claim for service connection for the cause of the Veteran's death, noting that he served on the U.S.S. Henley for three months and was then assigned to the U.S.S. Strong, where he was exposed to asbestos. In October 2008, the appellant asserted that the Veteran performed industrial work on the ship while it was dry docked in Charleston, South Carolina, and was exposed to asbestos where he ate and slept on the ship. In January 2011, the appellant noted that the Veteran worked at Bethlehem Steel Corporation after separation from service until he retired in 1984. In a January 2012 memorandum, the Appeals Management Center (AMC) noted that the Veteran's naval occupation of radar man had a minimal probability of exposure to asbestos and included a VA memorandum dated May 13, 2002, outlining the probability of exposure to asbestos on naval vessels based on occupational specialty. In response to a March 2012 remand, a formal finding on a lack of information to resubmit a request to Naval Systems Command (or other appropriate entity) for a revised probability of the Veteran's exposure to asbestos was provided in August 2015. The memorandum notes that the Veteran did not report to the U.S.S. Strong until December 31, 1953, so there was no new evidence for consideration regarding the Veteran's alleged exposure to asbestos during the ship's overhaul period conducted in the Charleston Naval shipyard. After careful review of the evidence, the Board concludes that service connection for the cause of the Veteran's death is not warranted. As an initial matter, the Board notes that the appellant does not assert, and the evidence does not show, that mesothelioma was present in service or until many years after separation from service. Accordingly, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) is not for application. Moreover, the Board finds that mesothelioma was not etiologically related to service, to include the claimed in-service exposure to asbestos. In this regard, the Board finds that the preponderance of the evidence shows that the Veteran was not exposed to asbestos during active service. The evidence of record indicates that the Veteran's naval occupation had minimal potential exposure to asbestos and that he did not report for duty on the vessel until after its overhaul at the Charleston Naval shipyard in 1953. Moreover, the Veteran indicated in his February 2008 application for service connection for mesothelioma that he did not believe he was exposed to asbestos in service. Moreover, when he was seen by VA for treatment in February 2008, he stated that he did not believe he was exposed to asbestos in service because he spent much of his time on top of the ship. Thus, the Board is left with no reasonable basis for finding that the Veteran was exposed to asbestos during service. While the appellant might sincerely believe that the Veteran was exposed to asbestos during service, she has no personal knowledge of such exposure. For the reasons discussed above, the Board has determined that he was not. While the Board is sympathetic to the appellant's claim, she has not identified any other basis for granting the claim, and the Board's review of the record has disclosed no other basis for granting the claim. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs