Citation Nr: 1641145 Decision Date: 10/20/16 Archive Date: 11/08/16 DOCKET NO. 09-23 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to September 1965. He died in June 2008. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2012, the appellant testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran served on active duty from September 1962 to September 1965, during which he was exposed to metal dust. 2. The Veteran's death was caused by idiopathic pulmonary fibrosis related to his exposure to metal dust during service. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the Veteran's death was caused by a disability incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. That determination will be made by exercising sound judgment, without recourse to speculation, after a careful analysis of all the facts and circumstances surrounding the death. 38 C.F.R. § 3.312(a) (2015). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2015). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2015). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2015). It is not sufficient to show that it casually shared in producing death, but rather it must be shown there was a causal connection. 38 C.F.R. § 3.312(c) (2015). Schoonover v. Derwinski, 3 Vet. App. 166 (1992) (addressing requirements for consideration of disabilities attributable to service as contributory, as well as direct cause of death in DIC claims); Mattern v. West, 12 Vet. App. 222 (1999). Determinations as to whether service connection may be granted for a disability that caused or contributed to a Veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran died in June 2008. The Veteran's death certificate lists the immediate cause of death as respiratory failure, due to underlying interstitial pulmonary fibrosis. The certificate lists renal failure, ischemic heart disease, peripheral vascular disease, systemic and pulmonary hypertension, and diabetes mellitus as contributory causes to the Veteran's death. VA did not grant service connection for any of the disabilities listed on the Veteran's death certificate during his lifetime. At the time of his death, the Veteran was service connected for a low back disability, migraines, paralysis of the fifth cranial nerve, limited motion of the jaw, and hearing loss. The appellant claims that the Veteran's death was caused by a disease etiologically related to the Veteran's service. Specifically, the appellant contends that the interstitial pulmonary fibrosis that caused the Veteran's failure respiratory failure was caused by exposure to metal dust or asbestos during service. Alternatively, the appellant contends that the diabetes mellitus, listed as a contributory disease on the death certificate, was caused by in-service residual herbicide exposure from working on vehicles used in Vietnam. Reviewing the evidence of record, the Veteran's service personnel records include brief passages, suggesting that the Veteran worked as a an automobile mechanical helper for approximately 55 months prior to service, and worked as a wheeled vehicle mechanic during service for 13 months. In a June 2010 letter, a private examiner reported treating the Veteran on two occasions, in November 2007 and May 2008, respectively. The examiner indicated that the Veteran had interstitial lung disease with fibrotic changes noted on chest X-rays as far back as 2003. The examiner indicated that the interstitial disease likely played a significant role in his death. The examiner stated that, while the Veteran did not have any documented asbestos exposure, his service may very well have placed him at risk of asbestos exposure. In a June 2010 letter, a private examiner reported being the Veteran's primary provider for many years prior to his death. The examiner stated that the Veteran developed kidney disease and coronary artery disease due to the diabetes which contributed to his death. The examiner indicated that the Veteran's diabetes was reportedly service-connected. In an additional June 2010 letter, a private examiner reported treating the Veteran for chronic kidney disease caused by a combination of hypertension and diabetes. In a July 2010 letter, a private examiner reported treating the Veteran for type II diabetes, diagnosed in 1992. The examiner noted that the diabetes caused multiple complications including chronic kidney disease and coronary artery disease. The examiner stated that the Veteran was exposed to Agent Orange, a well-known factor in the development of diabetes, during service. The examiner indicated that the Veteran died of complications related to diabetes. At an April 2012 Travel Board hearing, the appellant indicated that the Veteran's exposure to metal dust while serving as a wheeled vehicle repairman caused his fatal pulmonary disability. In a May 2012 private medical opinion, the Veteran's family physician wrote that it was at least as likely as not that the Veteran's fatal respiratory disability was related to the Veteran's exposure to metal dust while working as a wheeled vehicle mechanic during service. The examiner noted that etiological factors associated with the pulmonary disability included chronic exposure to domestic wood burning and metal dust, such as from mechanical work. The examiner stated that other potential risk factors included cigarette smoking, farming, Epstein Barr virus, hepatitis C, adenovirus, and genetic factors. The examiner found that the Veteran had a negative family history for the type of pulmonary disease involved, and had no known risk factors for rheumatologic or viral disease. Further, the examiner indicated that the Veteran had a limited smoking history, having quit smoking in 1986. Finally, the examiner found that, in terms of occupational exposures, the only job that the Veteran had that put him at risk for such a condition was related to his active duty work as an automobile mechanic. Therefore, the examiner found that it was at least as likely as not that the Veteran s fatal pulmonary disability was related to exposure to metal dust during service. In a July 2013 VA examination report, a VA examiner reported reviewing the evidence. Having done so, the examiner opined that the Veteran's fatal pulmonary fibrosis was less likely than not caused by, aggravated by, or the result of the Veteran's service, to include duties as a wheeled vehicle mechanic and exposure to asbestos. In explaining this opinion, the examiner stated that the risk of asbestos exposure was low because the Veteran only served as a wheeled vehicle mechanic for 13 months during service. In addition, the examiner noted that the examination reports did not contain evidence of asbestosis, to particularly include the pleural plaques or other findings suggestive of that disability. Regarding the May 2012 private medical opinion, the examiner did not concur with that opinion, because the Veteran was possibly exposed to metal dust and other contaminants while working as a vehicle mechanic prior to service and at other jobs after service. The examiner stated an opinion that the Veteran's pulmonary fibrosis was not due to metal dust. As the Veteran only served overseas in Germany and left service prior to the known usage of Agent Orange or other toxic herbicides, the examiner stated that the Veteran diabetes was unrelated to events or herbicide exposure in service. In an August 2013 letter, the Veteran's sister, who worked as a nurse both during and after her own period of service, stated that her parents did not allow their children to work during their school years. She indicated that, had the Veteran worked for 55 months prior to service as an automobile mechanical helper, as suggested by the service personnel records, he would have had to begin that work when he was 13-years-old. She reported that the Veteran actually worked in that position for five months prior to service. Although the service personnel records indicated that the Veteran only served as a wheeled vehicle mechanic for 13 months, she noted that the Veteran underwent advanced in-service technical training in Oklahoma, and spent 17 months working around vehicles and missiles in Germany, prior to the 13 months working as a wheeled vehicle mechanic. Considering that experience, she stated that the Veteran was exposed to metal dust for 32 months during service. She also suggested that the Veteran experienced asbestos exposure while working on brakes during service. She stated that the Veteran's fatal lung disability was at least as likely as not related to exposure to asbestos and metal dust during service. In a January 2016 VA medical opinion, a VA examiner reported reviewing the evidence. Having done so, the examiner opined that the Veteran's fatal pulmonary fibrosis was less likely than not caused or related to service, to include duties as a wheeled vehicle mechanic and exposure to asbestos. In explaining that opinion, the examiner noted that the examination reports did not contain evidence of asbestosis, to particularly include the pleural plaques or other findings suggestive of that disability. As the Veteran only served overseas in Germany and left service prior to the known usage of Agent Orange or other toxic herbicides, the examiner stated that the Veteran diabetes was unrelated to herbicide exposure in service. The examiner stated that there was no evidence indicating that the Veteran developed diabetes during service. Having reviewed the evidence, the Board finds that the evidence is roughly in equipoise as to whether the Veteran's fatal idiopathic pulmonary fibrosis was related to exposure to metal dust during his almost three years working as a wheeled vehicle repairman in service. The Board notes that the July 2014 and January 2016 VA medical examiners wrote convincing opinions, supported by evidence, indicating that the Veteran's pulmonary and diabetes disabilities were not related to exposure to in-service asbestos or herbicide exposure. However, in an August 2013 letter, the Veteran's sister presented credible evidence, indicating that the Veteran experienced 32 months of exposure to metal dust during service. In a May 2012 private medical opinion, a private examiner stated that the Veteran's fatal pulmonary disability was related to the in-service metal dust exposure. In the subsequent July 2013 VA medical opinion, the VA examiner did not concur with the May 2012 private examiner's opinion, because the Veteran was possibly exposed to metal dust and other contaminants both before and after service. The examiner stated an opinion that the Veteran's pulmonary fibrosis was not due to metal dust. In the most recent VA medical opinion, the January 2016 VA examiner offered no opinion as to whether the pulmonary disability was related to in-service metal dust exposure. The Board finds that the May 2012 private medical opinion and July 2013 VA medical opinion, weighing for and against the appellant's claim for service connection, are both brief, but appear to be based on the examiner's view of the evidence. As the Board finds them to be equally persuasive, the evidence is in equipoise as to whether the Veteran's fatal idiopathic pulmonary fibrosis was related to exposure to metal dust during service. Resolving reasonable doubt in the appellant's favor, the Board finds that it is at least as likely as not the pulmonary fibrosis was due to metal dust exposure during service. Therefore, service connection for the cause of the Veteran's death is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs