Citation Nr: 1751805 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-02 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) based upon service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits based on a pending claim for service connection for interstitial lung disease. 3. Entitlement to accrued benefits based on a pending claim for service connection for polymyositis. 4. Entitlement to accrued benefits based on a pending claim for service connection for a left shoulder disability, to include as secondary to polymyositis. 5. Entitlement to accrued benefits based on a pending claim for service connection for a right shoulder disability, to include as secondary to polymyositis. 6. Entitlement to accrued benefits based on a pending claim for service connection for a left hip/thigh disability, to include as secondary to polymyositis. 7. Entitlement to accrued benefits based on a pending claim for service connection for a right hip/thigh disability, to include as secondary to polymyositis. 8. Entitlement to accrued benefits based on a pending claim for service connection for a left knee disability, to include as secondary to polymyositis. 9. Entitlement to accrued benefits based on a pending claim for service connection for a right knee disability, to include as secondary to polymyositis. 10. Entitlement to accrued benefits based on a pending claim for service connection for irritable bowel disease, to include as secondary to polymyositis. 11. Entitlement to accrued benefits based on a pending claim for service connection for chronic fatigue syndrome, to include as secondary to polymyositis. 12. Entitlement to accrued benefits based on a pending claim for entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disability. 13. Entitlement to accrued benefits based on a pending claim for entitlement to Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35 (DEA). REPRESENTATION Appellant represented by: Christie Bhageloe, Attorney ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to June 1992. He died in October 2014, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System. The issues of entitlement to DIC benefits and entitlement to accrued benefits based on a pending claim for service connection for interstitial lung disease are decided in the decision below, and the remaining claims are addressed in the REMAND that follows the ORDER section of the decision. FINDINGS OF FACT 1. The Veteran died from diffuse pulmonary interstitial fibrosis. 2. The Veteran's interstitial fibrosis was etiologically related to his exposure to silica fibers in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for interstitial lung disease for the purpose of accrued benefits, have been met. 38 U.S.C.A. §§ 1110, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2017). 2. The criteria have been met for entitlement to dependency and indemnity compensation, based on a finding that the Veteran's death was due to a disease incurred in service. 38 U.S.C.A. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.311, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the appellant's claims for service connection for the cause of the Veteran's death and entitlement to accrued benefits based on the pending claim for service connection for interstitial lung disease. Therefore, with respect to these claims, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2017). Legal Criteria Dependency 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, 3.312 (2017). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). 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; 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). Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000 (2017). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102 (2017); 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 Initially, the Board notes the claims of entitlement to DIC and entitlement to accrued benefits based on the pending claim for service connection for interstitial lung disease are substantially intertwined. Since the resolution of these claims involves the application of congruent law to similar facts, in the interest of judicial economy these issues will be addressed together. By way of background the Veteran initiated a claim for residuals of polymyositis in March 2010. At that time, the Veteran reported experiencing lung impairments, which he believed were attributable to his reported asbestos exposure in service. Subsequently, in February 2011 correspondence, the Veteran's representative clarified that he wished to specifically claim entitlement to service connection for interstitial fibrosis. Since that time, the Veteran advanced several alternative theories of entitlement to service connection for this disability. Unfortunately, in October 2014 the Veteran died. Thereafter, his spouse was properly substituted as the claimant in his pending appeal. Further, the Veteran's surviving spouse initiated a claim for service-connected death benefits in February 2015. The Veteran's medical records and autopsy reports show he was diagnosed with and died as a result of diffuse pulmonary interstitial fibrosis. Additionally, the autopsy report found foreign materials consistent with silica. Prior to his death, the Veteran reported that he had never smoked. Further, the Veteran's DD-214 indicates he was a Builder in the Navy, colloquially referred to as a Sea Bee. A review of the Veteran's service treatment records indicates he required annual occupational hazard medical assessments as a result of his military occupation. He was also evaluated for respirator fitness. The Veteran's frequent use and exposure to concrete would have certainly been consistent with the types and circumstances of the Veteran's service. The Board also notes that following service the Veteran worked as a laborer and mechanic at a trucking and storage company. In the course of a March 2013 VA examination, the examiner stated a large volume open lung biopsy would be the best way to properly identify whether certain fibers or particulate irritants were responsible for the Veteran's interstitial fibrosis. In March 2016, a Nurse Practitioner who has specialized in disability determinations with both VA and the Social Security Administration provided a statement in support of the Appellant's claim. In sum, the clinician indicated it was "more likely than not" the Veteran's interstitial fibrosis was "related to...his silica exposure during active duty military service." In support of her conclusion, the clinician noted a VA examination, wherein the Veteran reported working with concrete, both pouring and cutting, while on active duty. In this regard, the Nurse Practitioner cited to a medical study, which found that many methods of "removing, repairing, or altering existing concrete structures have the potential for producing vast quantities of respirable dust." The study also found "silica...is a major component of concrete," and as such when the concrete is altered silica inhalation is a hazard to exposed workers. The clinician also noted a U.S. Department of Labor study, which indicated that silica exposure may not be obvious initially, but progresses to silicosis after 15-20 years of even low to moderate exposures. This study indicated that in those later stages, the exposed person may experience shortness of breath, fatigue, or respiratory failure. In this case, the Nurse Practitioner found the Veteran's symptoms first presented 17 years after his separation from active duty, which she found was supported by the U.S. Department of Labor's definition of the progression of silicosis. The Board finds the clinician to be competent to provide this opinion, and also finds the opinion to be clearly articulated, well-reasoned, and with supporting medical research. There is no other medical opinion addressing whether the Veteran's military occupational duties could have contributed to his interstitial fibrosis. Based on the foregoing, the Board finds service connection for interstitial fibrosis, as well as the cause of the Veteran's death is warranted. As noted above, the evidence of record contains a well-articulated medical opinion linking the Veteran's interstitial fibrosis to silica exposure in service. Although the Veteran's exposure to silica dust in service cannot be proven beyond the shadow of a doubt, the Board is sufficiently convinced that his use and exposure to concrete would have very likely been consistent with the types and circumstances of his military occupation as a Builder. As a trucking company laborer and mechanic following service, the Veteran's exposure to silica would have likely been limited. The record contains no evidence rebutting the March 2016 Nurse Practitioner's conclusions. As such, the Board finds that the evidence in favor of these claims is at least in equipoise with that against the claims. Therefore, service connection is in order for the Veteran's interstitial fibrosis, and ultimately for the cause of the Veteran's death. ORDER Entitlement to accrued benefits based on a pending claim for service connection for interstitial lung disease is granted. Entitlement to dependency and indemnity compensation, based on service connection for the cause of the Veteran's death, is granted. REMAND Prior to his death, the Veteran on numerous occasions had asserted that in anticipation of being deployed to the Persian Gulf War, he had received various inoculations. However, to date, the Veteran's immunization records have not been obtained. These records are a critical piece of evidence, because they would potentially allow for a more comprehensive review of the medical literature to determine whether the Veteran's polymyositis was consequentially related to a specific immunization he may have received. These records are in the possession of a federal agency, and as such, VA must attempt to obtain those records until it determines the records either do not exist or that any additional attempts to obtain those records would be futile. See 38 C.F.R. § 3.159(c)(1). In such instances, VA must prepare a formal finding of unavailability for the record. Since these records may contain relevant and material evidence, the Board finds additional development is necessary to obtain these records. On remand, relevant outstanding medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Appellant's remaining issues on appeal, to specifically include the Veteran's in-service immunization records. If any requested records are not available, the record should be annotated to reflect such and the Appellant notified in accordance with 38 C.F.R. § 3.159(e). If the Veteran's immunization records are not obtained, a formal finding should be prepared, outlining all efforts made to obtain them. 2. Then undertake any other indicated development, and thereafter readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Appellant's satisfaction, the Appellant and her representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Appellant need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs