Citation Nr: 1803771 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-38 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and bronchitis, to include as due to asbestos exposure. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to February 1959. He died in April 2016. The appellant is his surviving spouse. In a July 2016 letter, the appellant was informed that she has been substituted as the appellant for the claim for service connection for a respiratory disability pending at the time of the Veteran's death. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2016 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously remanded in July 2017 and October 2017 for a videoconference hearing. However, in a December 2017 Statement in Support of Claim, the appellant's representative indicated that the appellant wished to cancel her hearing and asked that the Board proceed with the adjudication of her claims. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's respiratory condition did not originate in service or for many years thereafter and is not otherwise related to active service. 2. The Veteran died in April 2016 and the death certificate shows that the immediate cause of death was COPD and noted coronary artery disease (CAD), hypertension (HTN), Type II diabetes mellitus (DM), high cholesterol, and peripheral vascular disease (PVD) as significant conditions contributing to death, but not resulting in the underlying cause. 3. The record does not establish that the Veteran's service-connected crush injury of the left foot, hearing loss, or tinnitus disabilities caused or contributed substantially or materially to his cause of death. 4. The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred over 56 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a respiratory condition are not met. 38 U.S.C. §§ 1101, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.312 (2017). 3. The criteria for DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318, (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appellant and her representative have not raised issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection A. COPD Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the M21-1 Adjudication Procedure Manual ("VBA Manual") provides information concerning claims for service connection for disabilities resulting from asbestos exposure. See VBA Manual M21-1, III.i.3.A.2.a. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. Dyment v. West, 13 Vet. App. 141, 145 (1999); see also VAOGCPPREC 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See VBA Manual M21-1, IV.ii.2.C.9.h. Analysis With regard to the first element, current disability, the Veteran has diagnoses of COPD, with the date of diagnosis noted as 2009 and chronic bronchitis, with COPD indicated as predominately responsible for the episodes of respiratory failure. See September 2015 DBQ and February 2016 VA respiratory examination report. Thus, the first element is satisfied. Turning to the second element, in-service incurrence or aggravation of a disease or injury, service treatment records (STRs) include a January 1957 Report of Medical Examination at enlistment with clinical evaluation findings indicating normal lungs and chest. His February 1959 Report of Examination at separation also indicated normal lungs and chest. STRs do not show any treatment or diagnoses related to COPD or other respiratory disorders and are negative for asbestos exposure or complaints. Thus, the second element has not been satisfied. Finally, with regard to the third element, nexus, the February 2016 VA respiratory examination report indicated that in May 2014 the Veteran reported he had exposure as a house painter and as a smoker (90 pack years) in relation to his respiratory problems and also indicated no asbestos exposure and related nothing to military service. The January 2018 VA examiner opined that the Veteran's respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no current or past diagnosis of asbestosis or medical records confirmation of any asbestos inhalation exposure in service (despite possible in-service asbestos exposure conceded by VA Form 2507 as possible presumptive "minimal asbestos exposure" from his two year USN Bosun service period). Additionally, there is no expert medical literature documenting causation of COPD as one of the manifestations of lung disease caused by asbestos fiber inhalation. It is far more likely that COPD is related to the Veteran's heavy past cigarette smoking and not to any possible in-service occupational exposures. The Board finds the examiner competent and credible and affords provide weight as the examiner reviewed the claims file and provided a thorough rationale including an alternative etiology of the Veteran's COPD. The appellant has submitted no competent nexus evidence contrary to the VA examiner's opinion. Consideration has been given to the lay assertions relating his COPD to service. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. Further, the Veteran and the appellant have not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for a respiratory condition is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). B. Cause of the Veteran's Death Legal Criteria 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). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Analysis At the time of the Veteran's death, he was service connected for crush injury of the left foot, rated 20 percent disabling from August 27, 2013; hearing loss, rated noncompensable from September 2, 2010, and 10 percent from August 27, 2013; and tinnitus, rated 10 percent from August 27, 2013. The Veteran's total combined rating was 40 percent. As detailed above, establishing service connection for cause of death requires (1) evidence of death, (2) evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding the first element, the death certificate of record shows that the Veteran died in April 2016 and his death certificate indicated the immediate cause of death was COPD. The Veteran's death certificate noted coronary artery disease (CAD), hypertension (HTN), Type II diabetes mellitus (DM), high cholesterol, and peripheral vascular disease (PVD) as significant conditions contributing to death, but not resulting in the underlying cause. With respect to the second and third elements, at the time of the Veteran's death he was not service connected for COPD, CAD, HTN, Type II DM, high cholesterol, or PVD. Additionally, the evidence of record does not demonstrated that CAD, HTN, Type II DM, high cholesterol, or PVD began during, or is otherwise etiologically related to, the Veteran's military service. Moreover, as discussed above, service connection for COPD is not warranted. Furthermore, the medical evidence does not reflect that the Veteran's service-connected disabilities contributed to his death or that they lent assistance to the production of death. Therefore, service connection for the Veteran's cause of death must also be denied. As the evidence fails to establish that the Veteran had a service-connected disability that was either the principal or a contributory cause of death, the appellant's claim for entitlement to service connection for the cause of the Veteran's death is not warranted. III. DIC Legal Criteria A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran's death were service connected where it is shown that the Veteran's death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). Analysis As previously stated, at the time of the Veteran's death in April 2016, he was service-connected for crush injury of the left foot, rated 20 percent disabling from August 27, 2013; hearing loss, rated noncompensable from September 2, 2010, and 10 percent from August 27, 2013; and tinnitus, rated 10 percent from August 27, 2013. The Veteran's total combined rating was 40 percent. Moreover, as discussed above, service connection for COPD is not warranted. Accordingly, there are no service-connected disabilities that were rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding the Veteran's death, and there were no service-connected disabilities that were continuously rated totally disabling for a period of not less than five years from the date of his February 1959 service separation. Additionally, the Veteran was not a former prisoner of war. Therefore application of 38 U.S.C. § 1318 is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a respiratory disability, to include COPD and bronchitis, to include as due to asbestos exposure is denied. Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C. § 1318 is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs