Citation Nr: 1800618 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-17 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for lung cancer for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is the widow of a Veteran who served on active duty from February 1968 to September 1971, and died in February 2013. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. The record is now in the jurisdiction of the Oakland, California RO. [The record does not include a copy of the appellant's claim for DIC (service connection for cause of death) benefits. RO correspondence to the appellant cites to such claim received in March 11, 2013 (and subsequent development reflects such claim must have been received). At the time of his death the Veteran had pending claims of service connection for hearing loss and rheumatoid arthritis. The appellant's April 2013 request for substitution limited her accrued benefits appeal to the matter of service connection for lung cancer. Finally, a claim for dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 has been raised. Such claim constitutes an alternate (to service connection for cause of death under 38 U.S.C. § 1310) theory of entitlement to DIC. Inasmuch as an award under § 1310 constitutes a greater benefit than one under § 1318, the decision below renders the claim under § 1318 moot (also, the legal requirements for § 1318 benefits are not met).] FINDINGS OF FACT 1. At the time of his death in February 2013, the Veteran had claims pending before VA (including seeking service connection for lung cancer). 2. He is reasonably shown to have been exposed to asbestos during his military service. 3. The record shows that he had Stage IV lung cancer, and competent medical evidence establishes that his lung cancer was, at least in part, related to his exposure to asbestos in service. 4. The primary cause of the Veteran's death is identified as metastatic poorly differentiated carcinoma, probable lung primary. CONCLUSIONS OF LAW 1. Service connection for lung cancer for accrued benefits purposes is warranted. 38 U.S.C. §§ 1110, 5107, 5121 (2012); 38 C.F.R. §§ 3.303, 3.1000 (2017). 2. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA redefined VA's duties to notify and assist a VA claimant in the development of a claim. As this decision grants the benefits sought, there is no reason to belabor the impact of the VCAA on the matters; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's service discharge certificate shows that he was a broadcast specialist. Service personnel records show that he was stationed at a base in Asmara, Ethiopia from December 1968 to November 1969. A December 2012 statement by a VA physician (who has specific subject matter expertise) indicates that the Veteran had metastatic cancer involving bone, liver, throat, and lung, that by biopsy is likely small cell, and commonly arises from the lung); attachments included a VA asbestos fact sheet supporting that the Veteran was exposed to asbestos in service, and the physician opined that the Veteran's lung cancer "is more than likely due to environmental hazards, such as asbestos during military service". The Veteran's death certificate shows he died on February [REDACTED], 2013, and that the primary cause of his death was "metastatic poorly differentiated carcinoma, probable lung primary". During the August 2017 videoconference hearing, the appellant testified that the Veteran had been stationed in Africa, and had worked in broadcast booths that were likely to have been lined with asbestos (as suggested by the VA fact sheet on asbestos). Service connection for lung cancer for accrued benefits purposes Accrued benefits are payable for any periodic monthly benefits under laws administered by the Secretary to which the decedent was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the deceased's death which were due and unpaid preceding the deceased's death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. A veteran must have had a claim for such benefits pending at the time of his death or else been entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Applications for accrued benefits must be filed within one year following the date of the Veteran's death. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). Service connection is warranted for disability due to disease or injury that was incurred or aggravated during service (in line of duty). 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed following service when all of the evidence establishes that it was incurred in service. 38 C.F.R. § 30303(d). It is not in dispute that a claim for accrued benefits was timely filed. The record shows, and it is not in dispute, that the Veteran had lung cancer. It is also reasonably shown, based on the Veteran's occupation in service and duty station (in Africa), and by the appellant's testimony (buttressed by a VA asbestos fact sheet) that the Veteran was exposed to asbestos in the course of his duties in service. Finally, a VA physician (Chief Medical Service, Pulmonary/Critical care) who has specific subject matter expertise with respect to the medical question presented in this case has opined that the Veteran's ling cancer was "more than likely due to environmental hazards, such as asbestos". The Board finds no reason to question the competence of the VA physician or the opinion offered; there is no competent (medical opinion) evidence in the record to the contrary. All of the requirements for substantiating a claim of service connection are met. Service connection for lung cancer is warranted. Service connection for the Veteran's cause of death DIC is payable when a veteran dies due to service connected disability. Service connection for the cause of a veteran's death is warranted when a veteran dies due to a service connected disability. 38 U.S.C. § 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. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). The Veteran's death certificate shows, and it is not in dispute, that the primary cause of his death was metastatic poorly differentiated carcinoma probable lung primary. As the determination above grants service connection for the lung cancer, the requirements for establishing service connection for the cause of his death are met; service connection for the cause of the Veteran's death is warranted. ORDER Service connection for lung cancer for accrued benefits purposes is granted. Service connection for the cause of the Veteran's death is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs