Citation Nr: 1751218 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-21 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death, to include as due to in-service asbestos and lead-based paint exposure. 2. Entitlement to Dependent's Educational Assistance (DEA) benefits under 38 USCA Chapter 35. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran had active service from November 1949 to November 1952. The Veteran died in October 2008. At the time of his death, the Veteran had no service-connected disabilities. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the benefits being sought on this appeal. In October 2009, the Appellant testified at a Decision Review Officer (DRO) hearing at the Huntington, West Virginia RO. In April 2012, the Appellant testified before the undersigned Veterans Law Judge (VLJ) during a Board hearing. Copies of the hearing transcripts have been associated with the claims file. This case was remanded to the Agency of Original Jurisdiction (AOJ) in November 2012 and in March 2016 for further development and has now been returned to the Board for appellate proceedings. FINDINGS OF FACT 1. The Veteran died in October 2008. 2. The death certificate lists the cause of death as renal cancer; no autopsy was performed. 3. At the time of his death, the Veteran was not service-connected for any disability. 4. There is no competent medical evidence linking the Veteran's cause of death to active service, to include asbestos and lead paint, therein. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1310, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2016). 2. The criteria for Dependent's Educational Assistance benefits under 38 USCA Chapter 35 are not met. 38 U.S.C.A. § 3501 (West 2014); 38 C.F.R. §§ 21.3020, 21.3021 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was satisfied by a December 2008 letter. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's post-service treatment records, death certificate, and other records relating to the Veteran's death, and lay statements have been associated with the record. A June 2016 VA medical opinion as to cause of death was obtained. This opinion rendered a medical etiological opinion with respect to the Veteran's cause of death and its relationship to the Veteran's service. The examiner took into consideration the Veteran's pertinent medical history, the Veteran and the Appellant's lay assertions, and a review of the record. The medical opinion is adequate. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Therefore, the Board finds that the Appellant has been provided an adequate medical opinion in conjunction with her claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board observes that the Veteran's service treatment records (STR) have been lost. Under such circumstances, where service records have been lost or destroyed through no fault of the veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis, in this case, has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). The Board notes that the VA has complied with its duty to notify and assist in the development of a claim. Hence, no further notice or assistance is required to fulfill that duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In its March 2016 remand, the Board directed the RO to obtain a VA medical opinion. The Board finds that there was substantial compliance with the remand directive. Stegall v. West, 11 Vet. App. 268 (1998). II. Cause of the Veteran's Death Dependency and Indemnity Compensation (DIC) 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. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a)(2016). A service-connected disability will be considered as the principal (primary) cause of death when such disability, 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)(2016). A contributory cause of death must be shown to have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1) (2016). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C.A. § 1310 (West 2014). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a) (2016). 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d) (2016). VA shall consider all information and lay and medical evidence of record, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board notes that at the time of the Veteran's death, he was not service-connected for any disabilities. As such, the Board finds that service connection for the Veteran's cause of death based on a service-connected disability is not warranted. The Veteran's death certificate lists renal cancer as the immediate cause of death. The Board notes that there is no evidence to connect renal cancer to the Veteran's service. As noted above, the STRs are unavailable, however, medical and lay evidence indicate that the Veteran was first diagnosed with renal cancer 56 years after service. The Appellant does not contend, nor did the Veteran report any complaints, treatments, or diagnosis of renal cancer during service and since that time. The Board, therefore, finds that service connection for renal cancer is not warranted on a direct basis, and the Appellant also does not so contend. The Appellant contends that the Veteran's exposure to asbestos and lead paint while serving in the military caused his renal cancer. Additionally, the Veteran, himself, provided statements alleging that he was exposed to asbestos and lead paint while in service. Specifically, he stated that he traveled to and from Korea aboard the USS Marine Adler, and slept in the lower part of the ship where the asbestos was heaviest, near pipes that were all insulated with asbestos. Additionally, he stated that he scraped and repainted ships and as such, was exposed to lead paint and asbestos. The Board notes that the Appellant in her testimonies before the DRO and the undersigned recounted what the Veteran told her about his in-service exposure to asbestos and lead-based paint. The Veteran's service personnel records and DD-214 forms show that he was a warehouseman and he received the Korean Service Medal, Bronze Service Stars. The records also show that he served aboard the USS Marine Adler for approximately 30 days while traveling to and from Korea in 1950. However, there is no indication in the record that the Veteran was subjected to asbestos exposure. The Veteran's post-service treatment records, dated in 2004 and 2005 report complaints and treatment of pneumonia and a kidney cyst. Further, records dated in 2006 show the Veteran's complaints, diagnosis, and treatment of a chronic obstructive pulmonary disease (COPD). Records dated in September 2008 documents his treatment for cancer of the urogenital system, diagnosed as renal cancer. A June 2016 VA medical opinion as to cause of death was obtained. The medical examiner was asked to opine whether the Veteran's pulmonary disorder and renal cancer was as least as likely as not, began in service; was caused by service, or otherwise related to service; and/or caused or contributed substantially or materially to the Veteran's cause of death. The June 2016 VA examiner thoroughly reviewed the Veteran's post-service and private treatment records. He opined that based on his 30 plus years of clinical experience as a board-certified oncologist-hematologist and former Chief of Hematology-Oncology, "it is less likely than not (less than 50 percent probability)" that the Veteran's respiratory condition was incurred in or caused by asbestos and lead-based paint exposure in service. The examiner rationalized that "[a]lthough it is recognized that asbestos insulation was used aboard [World War II] era ships on heating and hot water pipes, the amount of air-borne asbestos that a soldier would have been exposed to for the 1-2 weeks during transport would have been negligible and clinically irrelevant. This is in contrast to Navy personnel who spent months to years aboard ships in occupational specialties that brought them into direct contact with asbestos, such as firemen, boiler workers, electricians, etc. Further, the examiner opined that "[w]ith regard to the Veteran's chronic pulmonary conditions, the only one mentioned during his last two hospitalizations in late 2008 was COPD, and it is not a disease caused by asbestos or lead exposure. There is no diagnosis of interstitial fibrosis, restrictive lung disease, pleural plaques, bronchogenic carcinoma (i.e., lung cancer) or mesothelioma, any of which would be indicative of asbestos exposure." As to whether the Veteran's COPD contributed to his death in October 2008, the examiner opined that it is less likely than not that it did. The examiner presented the rationale that the Veteran was admitted to the hospital, the day prior to his death, with gastrointestinal bleeding and hematuria. Before the hospital admission, the Veteran was a resident of a nursing home, due to Alzheimer's dementia. The VA examiner noted that "because of his multiple comorbidities, including transitional cell cancer of the right kidney s/p nephrectomy 4 weeks earlier, the decision was made to provide comfort care only and not treat his multiple conditions. [The Veteran] was discharged from hospital on October [REDACTED], 2008, and died the following day." The Board notes that the examiner declined to offer an opinion based on the Veteran's Military Occupational Specialty (MOS) as a warehouseman: whether any of the warehouses in Korea that the Veteran was assigned to contained lead-based paint and asbestos. The examiner opined that would be pure conjecture and therefore, the risk cannot be assessed. The Board assigns great probative weight to the June 2016 VA examination report. The Board notes that the VA examiner is a VA staff physician who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the June 2016 VA opinion is shown to have been based on a review of the Veteran's record, and it is accompanied by sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The June 2016 VA examiner's opinion is also consistent with the evidence of record, as the Veteran's private treatment records in 2006 were the first mention of any treatment for a respiratory condition, COPD, over 50 years after discharge from active service. In the same June 2016 VA medical opinion, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's renal cancer was incurred in or caused by asbestos or lead-based paint exposure in service. The examiner found that the "Veteran [did not have renal cell cancer]; rather, he had the same type of cancer that arises in the bladder and in the ureter, and therefore, it is considered no different from bladder cancer insofar as risk factors for its development are concerned." The examiner noted that the Veteran "underwent a left nephrectomy in September 2008 for gross hematuria and was found to have a high-grade transitional cell carcinoma of the renal pelvis." Further, the examiner noted that "transitional cell cancers of the urinary tract are not associated with asbestos exposure, unlike renal cell cancer for which asbestos exposure is a risk factor. The known cancers associated with asbestos exposure include bronchogenic carcinoma, mesothelioma, laryngeal cancer, oropharyngeal cancer, esophageal cancer, biliary tract cancer, and renal cell cancer. The [V]eteran had none of these malignancies, and hence, the issue of asbestos-related cancer is moot." Finally, as to the cause of death, the examiner noted that "without a post-mortem examination it is not possible to state a cause of death. It is highly unlikely that he died from his transitional cell cancer of the renal pelvis since the entire [left] kidney had been removed just four weeks previously and there was no evidence of metastatic disease at that time." The VA medical opinion is significantly more probative than the Appellant's assertion that the Veteran was exposed to asbestos in the military. The examiner provided sound opinion supported by a thorough rationale. In April 2015, the Appellant's submitted two articles in support of her contention that the Veteran was exposed lead paint while serving in the military: Lead Poisoning and the Kidneys; and Lead, Diabetes, Hypertension and Renal Function: The Normative Aging Study. The Appellant underlined and circled sections addressing the relationship between lead exposure and kidney/renal disease. The first article, Lead Poisoning and the Kidneys, from Anesthesiology Review Course 2015, April 18-23, notes that kidney damage can be acute damage that results in long-term damage and kidney failure. Further, it notes that lead exposure is extremely toxic and can cause lesions in the kidneys, decrease blood flow to the kidneys and tissue damage. The second article, Lead, Diabetes, Hypertension and Renal Function: The Normative Aging Study, addresses the association between lead poisoning and renal disease in humans. The article notes numerous epidemiologic studies, mortality studies and experimental studies in animals have reported nephrotoxicity at high-level exposure. However, it also notes that studies on lower level exposure have produced mixed pattern findings. The article points out that "most of the studies found no significant association between low-level lead exposure and renal dysfunction." The Board notes that Medical treatise evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159 (a)(1) (2016). It can provide important support when combined with an opinion of a medical professional if the article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based on objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). The Board finds that these articles are not probative evidence as the evidence has failed to show that the Veteran was exposed to lead paint. Additionally, generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Neither of the two articles submitted in this case appears to meet the standard set forth in Wallin because they do not delve into an association between the Veteran's service and his renal cancer. The articles are less probative than other evidence of record as they do not apply the specific facts to this specific case. Sacks West, 11 Vet. App. 314, 317 (1998). The Board acknowledges the Appellant's assertion that her husband's renal cancer is related to his military service. However, the only evidence of record to support her contention that the Veteran was exposed to asbestos and lead-based paint while in service is her lay statements and the statement from the Veteran. The Board finds the Appellant is competent to report their recollections of what the Veteran told her. Layno v. Brown, 6 Vet. App. 465 (1994). There is nothing in the record to show that the Veteran did not tell her that he was exposed to asbestos and lead-based paint; thus, her reports of what he told her are credible. The Board finds the Veteran competent to attests to observable symptoms within his purview. Id. Nonetheless, the competent 2016 VA medical opinion is more probative than the lay assertions as it reflects familiarity with the entire record, and is accompanied by rationale referring to actual factual data for support. Thus, such opinion is the most probative evidence in this matter. Consequently, service connection is not warranted on the basis that the Veteran's cause of death from renal cancer was related to asbestos and lead-based paint exposure in service. Therefore, the Board finds that the preponderance of the evidence is against such a finding. Accordingly, the evidence of record does not show that the Veteran incurred a respiratory condition or renal cancer during his period of service from November 1949 to November 1952. The preponderance of the evidence shows that the Veteran was not exposed to asbestos or lead paint in service. Lastly, the preponderance of the evidence does not show that the cause of the Veteran's death was related to asbestos or lead-based paint exposure. Therefore, for the reasons above, the Appellant's service connection for the cause of death of the Veteran death is denied. The Board is sympathetic to the Appellant's claim; however, the weight of the evidence is against the claim. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Eligibility for Chapter 35 Educational Benefits The Appellant maintains that she is entitled to DEA benefits under Chapter 35, United States Code. Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code, may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the Veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a total disability permanent in nature resulting from a service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the Veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 U.S.C.A. §§ 3500, 3501, 3510 (West 2014); 38 C.F.R. §§ 3.807, 21.3021 (2016). Thus, a prerequisite to DEA eligibility determination is that the Veteran must have been honorably discharged and service connection must have been established for a disease or disability. Here, in this case, the Veteran was not service connected for any disabilities, upon his death. As discussed above, the law clearly establishes the requirements for basic eligibility to Chapter 35 educational assistance benefits. 38 U.S.C.A. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807, 21.3021. The stated purpose of Chapter 35 educational assistance is indeed to provide opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the service-connected disability or death of a parent, and for the purpose of aiding such children in attaining the educational status which they might normally have aspired to and obtained but for the disability or death of such parent. 38 U.S.C.A. § 3500 (West 2014). However, in enacting laws in support of those goals, Congress set limits on the entitlement to such benefits, including the provisions requiring that the Veteran be in receipt of "a total disability permanent in nature resulting from a service-connected disability," which control in this case. Unless an individual meets all of the requirements of a particular federal law authorizing monetary benefits, the Appellant is not entitled to the benefit. Indeed the benefit cannot be awarded, notwithstanding incomplete or even erroneous information provided by Government employees, and regardless of extenuating circumstances or claims of fairness. Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). In other words, unless all of the requirements of a particular law are met, a claimant is not entitled to the benefit, regardless of the circumstances. Accordingly, despite the Appellant's contentions, the Board is bound by the statutes and regulations discussed above. 38 U.S.C.A. § 7104 (c) (West 2014); 38 C.F.R. § 19.5(2016). The Board regrets that it cannot render a favorable decision on this matter, however, the applicable laws and regulations simply do not provide for the establishment of the Appellant's basic eligibility for DEA benefits. As this claim must be denied as a matter of law, the benefit of the doubt rule is not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for the cause of the Veteran's death, to include as due to in-service asbestos and lead-based paint exposure is denied. Entitlement to Dependent's Educational Assistance benefits under 38 USCA Chapter 35 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs