Citation Nr: 1620339 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 04-22 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran who served on active duty from February 1943 to April 1946. The Veteran died in January 2003. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims in August 2009, which vacated a March 2007 Board decision and remanded the case for additional development. The appeal initially arose from a January 2003 decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2006, the appellant testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was remanded for additional development in June 2010, February 2013, and December 2014. On remand, additional treatment records were obtained and associated with the record. Additionally, a subsequent supplemental opinion has been provided by medical personnel. The Board finds that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Many years after service, the Veteran developed coronary artery disease, ischemic cardiomyopathy, severe peripheral vascular disease, and chronic renal failure, from which he died in January 2003. These conditions were not caused by any incident of service. 2. At the time of the Veteran's death, service connection was not established for any disability. 3. The Veteran is not presumed to have died of a service-connected disability. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). VA also has a duty to assist claimants in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated in March 2003 and September 2010 provided all necessary notification to the claimant. VA has done everything reasonably possible to assist the claimant with respect to her claims for benefits. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The claims file was reviewed by VA expert examiners in June 2014, and a supplemental medical opinion was provided in August 2015. The June 2014 and August 2015 expert opinions indicate that the physicians reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that taken together, the expert opinions are adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection for the Cause of the Veteran's Death Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2015). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2015). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (2015). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). A current disability must be related to service or to an incident of service origin. A Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1322 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). Service connection may be granted on a presumptive basis for certain chronic diseases, such as cardiovascular-renal disease, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2015). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran died in January 2003. A January 2003 death certificate listed the cause of death as coronary artery disease, due to ischemic cardiomyopathy, severe peripheral vascular disease, and chronic renal failure. The Veteran was not service-connected for any disability prior to his death. The appellant contends that the Veteran developed a pulmonary disorder as a result of asbestos exposure during service, and that contributed to coronary artery disease, thereby causing his death. The Board notes that the RO denied the Veteran service connection for hypertension and related heart disabilities in June 1962, October 1995, April 2001, and March 2002 rating decisions, and denied the Veteran service connection for a lung disability in April 2001 and March 2002 rating decisions. The Board denied service connection for a lung disability in January 2013. The evidence of record does not show that the Veteran had a lung or cardiovascular disability while in recognized service or within any applicable presumptive period following his service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations with regard to asbestos claims. VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) which provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI, which has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. VAOPGCPREC 4-00 (2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). 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. M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). 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. M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Veteran's service personnel records show that his service duties were as a machinist's mate. An October 2001 response from the Navy Medical Liaison Office at the National Personnel Records Center indicates that, based upon the Veteran's duties as a machinist's mate, his exposure to asbestos was probable. The Board finds that there is sufficient evidence to presume that the Veteran was exposed to asbestos in service. A May 2000 private medical report shows the Veteran complaining of extreme shortness of breath with minimal chest discomfort. His chest was found to be essentially clear to auscultation with increased respiratory excursion, and he was admitted for evaluation. A June 2000 medical report showed the Veteran with improved shortness of breath and no chest pain or pressure. He was diagnosed with acute bronchitis. In a May 2001 VA medical report, the Veteran was found to have interstitial pulmonary markings suspicious for pulmonary fibrosis versus asbestosis and was qualified for home oxygen. The report also stated that the Veteran had a history of chronic obstructive pulmonary disease (COPD). An October 2001 medical report showed the Veteran complaining of worsening shortness of breath, wheezing, and coughing of more brown sputum. The diagnosis was COPD and pulmonary fibrosis that was possibly asbestos related. In a January 2002 medical report, the Veteran reported increased shortness of breath and cough and sputum production. He had been using oxygen at home. A chest x-ray revealed pulmonary edema with blunting of both diaphragms and a possible left middle lobe infiltrate. The Veteran was diagnosed with COPD and pulmonary fibrosis versus asbestosis. A September 2002 medical report showed that the Veteran's lungs were clear bilaterally, and a CT scan found interstitial fibrosis. In November 2002, a medical report shows that the Veteran was on three liters of home oxygen and complaining of difficulty breathing and a cough with brown sputum. The Veteran's lungs were found to have scattered rhonchii bilaterally. A CT scan showed interstitial fibrosis, emphysematous changes, and no pleural calcifications. In December 2002, the Veteran complained of increasing shortness of breath and chest pressure. A chest x-ray showed pulmonary fibrosis with pulmonary edema. The Veteran was found to have significant co-morbidities of pulmonary fibrosis with COPD. The Veteran's January 2003 terminal records show that the Veteran was hospitalized for a myocardial infarction. He was treated for the myocardial infarction and congestive heart failure due to ischemic cardiomyopathy, pulmonary fibrosis, bronchitis, hypertension, chronic renal insufficiency, aneurysm, and deep vein thrombosis. At no time did any treating physician relate the heart disease to service, including to exposure to asbestos in service. In August 2006, VA obtained an opinion addressing whether the Veteran's probable asbestos exposure during service ultimately caused or contributed to his death. The examiner reviewed the entire claims file and noted that the Veteran's January 2003 terminal records showed that his final period of hospitalization was precipitated by a myocardial infarction. The examiner also noted that the Veteran had a medical history of hypertension and through the years had smoked between 55 and 90 packs of cigarettes per year. The examiner found evidence of COPD with interstitial fibrosis and emphysematous changes. The examiner noted that some records mentioned an interstitial fibrosis pattern and raised the issue of a possibility of asbestos exposure versus smoking-induced COPD. The examiner found that there was no evidence of mention of pulmonary asbestosis. Based on a thorough review of all the available evidence of record, the VA examiner reported that the Veteran's death was caused by atherosclerotic cardiovascular disease with the primary manifestation being coronary artery disease and myocardial infarction, which caused severe heart damage leading to ischemic cardiomyopathy. The atherosclerotic cardiovascular disease was not found to have been caused by or the result of the Veteran's probable asbestos exposure. The examiner additionally reported that the Veteran's COPD was more likely the result of his extensive smoking based on interstitial fibrosis patterns that could be associated with smoking-induced lung disease. The Veteran's COPD was not reported as part of the primary cause of death and was found to be less likely than not caused by or a result of the probable asbestos exposure in service. The examiner found that the COPD was more likely than not caused by or a result of the Veteran's smoking history and noted that the Veteran's probable asbestos exposure could not be completely excluded from having a role in causing the lung disease without resorting to mere speculation. The VA examiner concluded that it was less likely than not that the Veteran's probable asbestos exposure caused, materially influenced, or accelerated his death, and that statement was indicated to be accurate without resorting to mere speculation in regard to the Veteran's illness. A July 2009 Court Memorandum Decision remanded the claim for service connection for the cause of the Veteran's death for the Board to determine if either clarification of an August 2006 VA medical opinion should be undertaken or a new medical opinion should be obtained. Specifically, the Court indicted that any medical opinion must be based on the established fact that the Veteran was exposed to asbestos in service and not on the notion of probable exposure. The Court found the August 2006 VA medical examiner's reliance on statements of the Veteran's probable asbestos exposure instead of the Veteran's conceded asbestos exposure essentially undermined the probative value of the opinions. In response to the Court's concerns, the Board remanded the claim to obtain a supplemental opinion. In June 2014, VA medical opinions were obtained from M.N.A., M.D., a VA fee basis physician, and from W.M.A., M.D., identified as a pulmonologist and chief of the Tampa, Florida, VA Pulmonary, Critical Care, and Sleep Medicine service. Dr. M.N.A. stated that "medical record entries do mention the [interstitial] fibrosis pattern on his chest X-ray, and raise the possibility of asbestos exposure versus smoking-induced COPD as etiological possibilities," but that the cause of death was less likely to have been a result of asbestos exposure or otherwise related to the Veteran's active service. Dr. M.N.A. indicated that the Veteran's exposure to asbestos in service in no way had a material influence in accelerating his death. That doctor also stated that "asbestos exposure cannot be totally excluded from having any role in causing his lung disease without resorting to mere speculation" and that it was "not possible to make a definitive statement that the veteran's probable exposure to asbestos did or did not in any way influence the course of his illness without resorting to mere speculation." Dr. M.N.A. also opined that the Veteran's COPD was more likely than not a result of his extensive smoking. Dr. M.N.A. noted the interstitial fibrosis pattern on the Veteran's X-rays and stated that it was a non-specific finding as interstitial fibrosis patterns can be associated with smoking-induced lung disease, various inhaled substances, a variety of intrinsic lung diseases, and asbestos. Dr. M.N.A. opined that COPD was not the Veteran's primary cause of death; it was less likely than not caused by or a result of the Veteran's asbestos exposure and more likely than not caused by his extensive smoking history. The opinion of Dr. W.M.A. expressed agreement with the opinions of Dr. M.N.A. that any diagnosed lung disability was less likely a result of the Veteran's in-service asbestos exposure and that his asbestos exposure in service in no way had a material influence in accelerating death. Dr. W.M.A. said that the predominate abnormality in the Veteran was COPD with emphysema, and some degree of interstitial fibrosis is seen in patients with COPD and those with exposure to asbestos fibers. Dr. W.M.A. opined that smoking was the predominate cause of the Veteran's COPD. In August 2015, VA obtained a clarifying opinion from Dr. W.M.A. in which the doctor opined that although the Veteran had exposure to asbestos in the service, it was less likely than not that the Veteran had any asbestos-related lung disease. Dr. W.M.A. reviewed the Veteran's CT scans and did not see pleural plaques. Dr. W.M.A. specified that the predominant finding was extensive emphysema with a left upper lobe nodule. Dr. W.M.A. reviewed the medical definition of asbestosis and contrasted that definition with what he saw on the CT scan review. He specified that the predominant finding on pulmonary specialist evaluation, chest radiography, and pulmonary testing was COPD; and he indicated that the Veteran's COPD was not caused by asbestos but was caused by smoking. He opined that it was less likely than not that the Veteran's cause of death was related to or accelerated by asbestos exposure. He referenced the prior clear descriptions of cardiovascular disease. In considering the evidence of record, it is notable that none of the Veteran's medical treatment providers have opined that the Veteran's cause of death was at least as likely as not related to active service, to include exposure to asbestos. The only evidence which provides any connection between the Veteran's cause of death and service came from the appellant and the appellant's attorney. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the appellant's and attorney's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether the cause of the Veteran's death was caused by active service, to include exposure to asbestos, that issue falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the appellant or attorney have the medical expertise or training to provide such an opinion, and no competent opinions are of record that relate the Veteran's death to service. The Board has considered the appellant's attorney's concerns regarding the adequacy of the June 2014 and August 2015 VA opinions. However, if a physician is able to state that a link between a disability and an in-service injury or disease is "less likely than not," or "at least as likely as not," the physician can and should give that opinion. There is no need to eliminate all lesser probabilities or to ascertain greater probabilities. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board finds the June 2014 and August 2015 VA examiner's opinions to be more probative than the appellant's and attorney's assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinions of the June 2014 and August 2015 VA examiners are highly probative because, taken together, they were supported by detailed rationale and provided by examiners with medical training and experience. The examiners identified and discussed the appellant's contentions. The June 2014 and August 2015 VA opinions are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the record and the thoroughness and detail of the opinion. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Furthermore, the Board notes that the appellant's attorney has submitted medical treatise evidence. Regarding the printouts from the internet health sites submitted by the appellant's attorney, the Board observes that medical articles or treatises can provide important support when combined with the opinion of a medical professional if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, neither the appellant nor her attorney has provided a medical opinion linking the cause of the Veteran's death to his service, to include exposure to asbestos. Standing alone, the medical treatise evidence is simply too general to make a causal link between the Veteran's cause of death and his service that is more than speculative in nature. Moreover, the June 2014 and August 2015 VA examiners who provided opinions in the specific facts of this case noted medical treatise information concerning asbestosis and exposure to asbestos and concluded that it was less likely than not that the Veteran's cause of death was related to or accelerated by his asbestos exposure. Therefore, the Board finds that the statements in the printouts submitted by the appellant's attorney relating to asbestos exposure and asbestosis are outweighed by the VA examiner's assessment of the medical literature as a whole. Hayes v. Brown, 5 Vet. App. 60 (1993). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, the Board finds no competent probative evidence of a direct medical nexus between service and the cause of the Veteran's death. The evidence of record weighs against such a finding. Thus, service connection for the cause of the Veteran's death is not warranted. In addition, cardiovascular disease was not diagnosed within one year of separation, so presumptive service connection for cause of the Veteran's death is not warranted. In sum, the evidence shows that the Veteran developed atherosclerotic cardiovascular disease, which led to his death, many years after service. This fatal condition was not service-connected, nor does any competent medical evidence of record demonstrate that it was caused by any incident of service. Additionally, the weight of the competent medical evidence of record is against a finding that the Veteran's pulmonary disorder was caused by any incident of service. The Board has placed the most probative weight on the June 2014 and August 2015 VA medical opinions that found it less likely than not that asbestos exposure had resulted in the Veteran's pulmonary disorder. The weight of the evidence shows that no disability incurred in or aggravated by service either caused or contributed to the Veteran's death. The opinions of record suggest that it is most likely that the Veteran's respiratory disability was due to a history of tobacco use. Service connection is expressly precluded for any disability related to tobacco use during service, for claims received after June 9, 1998. 38 U.S.C.A. § 1103 (2014); 38 C.F.R. § 3.300 (2015). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs