Citation Nr: 1804278 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 09-42 311A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to service connection for chronic obstructive pulmonary disease as a result of asbestos exposure for accrued benefit purposes (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (surviving spouse) ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran had active service from November 1959 to December 1960 and from November 1961 to August 1962. He died in April 2007. The Appellant is the Veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied entitlement to service connection for the cause of the Veteran's death and denied the reopening of a claim for service connection for COPD for accrued benefits purposes. In September 2008, the Appellant testified before a local hearing officer at the RO. A transcript of the hearing is of record. In March 2012, the Appellant testified at a hearing at the RO before a Veterans Law Judge. A transcript of this testimony has also been associated with the claims file. In September 2012, the Board found that new and material evidence had been submitted and reopened the claim of service connection for COPD for purposes of accrued benefits. The Board denied the Appellant's claim of entitlement to DIC benefits under 38 U.S.C. § 1151. The Board recharacterized the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 to more accurately reflect the Appellant's claims. The Board then remanded the newly reopened claim of service connection for COPD for accrued benefits; service connection for the cause of death; and DIC benefits under 38 U.S.C. § 1318 for further development. The requested development was performed and a supplemental statement of the case was issued in December 2015 addressing the previously remanded issues. In December 2016, the Board informed the Appellant that the Veterans Law Judge who performed the March 2012 Board hearing was no longer employed by the Board and provided the Appellant with several different options as it related to the testimony taken in March 2012. In a January 2017 response, the Appellant indicated that she wanted another Board hearing and that she would like the hearing to be in person at the local VARO. In March 2017, the Board remanded the claims in order to schedule a Board hearing at the RO. In October 2017, the Appellant testified at a video hearing before the Board. A transcript of the hearing is associated with the claims file. The Board is satisfied that there was at the very least substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDINGS OF FACTS 1. During an October 2017 Board hearing, before the promulgation of a decision in the appeal, the Appellant indicated her desire to withdraw her claim for DIC under 38 U.S.C. § 1318. 2. The Veteran died in April 2007, and the death certificate recorded the cause of his death as aspiration pneumonia due to pulmonary emphysema (dementia and rheumatoid arthritis is listed as contributing to the Veteran's death). 3. At the time of his death, the Veteran was service connected for right ear hearing loss, residuals of a right ear stapedotomy, a right hand disability, headaches and tinnitus. 4. The probative evidence of record does not establish that the Veteran's chronic obstructive pulmonary disease began during or was otherwise caused by his military service, to include as a result of any exposures therein. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the DIC claim under 38 U.S.C. § 1318 have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. §3.312 (2017). 3. The Appellant is not entitled to accrued benefits based upon the Veteran's pending claim for service connection for COPD. 38 U.S.C. § 5121 (2012); 38 C.F.R. §§ 3.160, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided; and neither the Appellant, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Specific to a claim for Dependency & Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VA's notice requirements include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Appellant was notified of the required information in September 2007 and September 2008. The second letter specifically provided notice with respect to the issue of establishing entitlement to DIC benefits under 38 U.S.C.A. § 1151. Thus, adjudication of this claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records and private treatment records have been obtained. Additionally, in a October 2017 Board hearing, the Appellant testified before the Board. A copy of the hearing transcript is associated with the claims file. At a March 2012 hearing the Appellant specifically waived any error in the content or timing of notice received. A VA medical opinion was provided, and neither the appellant nor her representative has objected to the adequacy of the medical opinion. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Appellant in adjudicating this appeal. II. Withdrawal of (DIC) benefits under 38 U.S.C. § 1318 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Appellant or by her authorized representative. Id. In the present case, in an October 2017 video Board hearing, the Appellant expressly withdrew her appeal with regard to the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is therefore dismissed. III. Service Connection for Cause of Death The Veteran died in April 2007. The Appellant filed a claim for DIC in July 2007. Specifically, the Appellant contends that the Veteran's exposure to asbestos during his military service caused him to develop COPD, ultimately resulting in his death. The Appellant asserts that in service the Veteran served as a wheel mechanic and worked directly with brake shoes that were full of asbestos. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. 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. The evidence of record confirms that the Veteran's served as a mechanic from November 1961 to August 1962. The Board concedes that it is likely that he was exposed to asbestos during that period of service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The Court of Appeals for Veterans Claims (Court) has held that VA must analyze a claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols of these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, supra. It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolarygneal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that an asbestos-related disease can develop from brief exposure to asbestos. M21-1, Part VI, 7.21(b), p. 7- IV-3. Under the provisions of the M21-1, Part VI, occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products, such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Of note, COPD is not listed as a disease that has been determined to be caused by asbestos exposure. At the time of his death, the Veteran was service connected for right ear hearing loss, residual right ear stapedotomy, right hand disability, headaches and tinnitus. However, the appellant has not really asserted that any of those conditions were responsible for the cause of the Veteran's death. Rather, she is of the opinion that the Veteran's asbestos exposure in service led to the development of lung problems that resulted in his death. At the October 2017 Board hearing, the Appellant testified that the Veteran started having breathing difficulty from the time he was discharged from service and first sought medical attention in 1963. Unfortunately, the Appellant acknowledged that those records are not available. In addition, the Appellant reported that the medical professional suggested that the Veteran's breathing problem was due to a sinus problem. The Appellant also reported that the VA began treating the Veteran for an allergy condition in 1996 or 1997. The evidence of record indicates that the Appellant has consistently argued that the Veteran's COPD was a result of in-service asbestos exposure. During the Board hearing she also testified that the Veteran was briefly exposed to lead paint while painting his barracks in service and got a splinter in his hand. However, neither the Appellant nor her representative asserted that the Veteran's current COPD was a result of his brief exposure to lead paint in service. Moreover, the Appellant testified that no medical professional has ever told her that they thought that the Veteran's breathing problems were a result of his military service. Turning to the medical evidence. The Veteran's VA medical records show that he was diagnosed with mild COPD during a physical exam in September 1996, more than 30 years after separating from service. In January 2003, the Veteran underwent a CT of his chest that was compared to a December 2002 CT of chest report. The report indicated that minimal parenchymal scarring was noted at both lung bases. No mass or pulmonary nodules were noted. There was no evidence of hilar or mediastinal lymphadenopathy and no other significant abnormality was noted. Subsequent VA treatment records show that the Veteran had chronic lung disease with interstitial pulmonary fibrosis. There is no objective medical evidence indicating or suggesting that the Veteran was ever diagnosed with either asbestosis or with a disease that is commonly associated with asbestos exposure. It is noted that the Veteran smoked approximately one pack of cigarettes per day for fifty years. An October 2007 letter from a VA physician indicates that the Veteran's terminal VA treatment records were reviewed. The physician indicated that the Veteran had multiple chronic medical conditions which had progressed in the months preceding his death. The physician explained that the aspiration pneumonia which killed the Veteran was an inflammation resulting from secretions from the mouth, pharynx and stomach getting into the lungs. In January 2009, another VA physician reviewed the Veteran's medical records and noted the Veteran's diagnoses of multiple medical conditions including COPD along with the cause of death indicated on the death certificate. The physician restated that the Veteran died due to aspiration pneumonia secondary to terminal emphysema (COPD), and that most often those with terminal emphysema die as a result of pneumonia superimposed over the underlying chronic lung condition. The examiner noted that the Veteran had a history of smoking. In June 2009, a VA examination provided a medical opinion specifically addressing the issue of service connection for obstructive pulmonary disease as due to exposure to asbestos regarding the Veteran. The examiner reviewed the medical records. Specifically, noting that a diagnosis of probable chronic obstructive pulmonary disease was noted on exam in September 1996 by Doctor M. and the Veteran's last pulmonary function test in 2005 noted mild obstructive lung disease. While it was acknowledged that the Veteran had been exposed to asbestos in service, the doctor noted that chest x-rays and January 2003 CT chest scan showed no plaques or signs of asbestosis. The examiner reported that the Veteran had multiple medical problems and in February 2007, the medical professionals felt that the Veteran had aspiration pneumonia. The Veteran died in April 2007. The examiner's report indicated that he reviewed the Veteran's death certificate and reported the immediate cause of death as aspiration pneumonia due to or consequence of pulmonary emphysema. The examiner opined that there is no objective evidence in the file that the Veteran's asbestos exposure caused, contributed or aggravated his condition leading to his death. The examiner reported that medical literature and textbooks do not support that asbestos exposure causes COPD. The examiner found that more likely than not his COPD was due to a result of his long history of smoking. Here, the Veteran's death certificate reports that his death was caused by aspiration pneumonia due to or consequence of pulmonary emphysema. There is no indication in the record that the VA or private medical professionals attributed the Veteran's COPD to his military service, service connected conditions or that it manifested to a compensable degree within one year of release from active duty. In fact, the medical evidence of record reaches exactly the opposite conclusion. Furthermore, at the time of the Veteran's death, service connection was not established for his COPD; and there has not been any allegation that any of the Veteran's service-connected disabilities either caused or was a material factor in the Veteran's death. Rather, the Appellant consistently contends that the Veteran's asbestos exposure during service caused the Veteran's COPD, which caused his death. In this case, to establish that service connection for the cause of the Veteran's death is warranted, it would need to be shown that the Veteran's COPD was either directly or presumptively linked to his time in active service. Although the evidence of record suggests the Veteran had asbestos exposure during service, as explained COPD is not a condition that is associated with such exposure by medical literature (per the examiner reviewing the claim). In addition, as discussed below, the evidence of record fails to establish that the Veteran's COPD either began during or was otherwise caused by his active service. At the time of his death, the Veteran was service connected for right ear hearing loss, residual right ear stapedotomy, right hand disability, headaches and tinnitus. He was not service connected for COPD and the condition was not diagnosed for decades after his military service. As such, there is no evidence to suggest that the Veteran's COPD began during his active service. Consequently, it is not shown that COPD, which caused the Veteran's death, was causally linked to his active service. The Veteran's representative contends that a preponderance of the evidence is in the Appellant's favor, or at the very least, is in equipoise. The Board finds that for the reasons discussed above there is not "significant evidence" in support of the claim, as to warrant application of the benefit-of-the-doubt rule. 38 U.S.C. § 5107(b). Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993). The Appellant has not contended that the Veteran sought treatment for COPD during active service. Moreover, neither the Appellant nor her representative has submitted medical opinions contrary to the opinions of record finding no link between the Veterans COPD and asbestos exposure during service. Consideration has been given to the Veteran's and Appellant's assertions that the Veteran's COPD was due to his active service, as a result of asbestos exposure. The Veteran was, and the Appellant is, clearly competent to report symptoms of COPD. In this case, however, the Board does not find that a lay person is competent to provide an opinion as to diagnosis or etiology. The diagnosis and etiology of COPD, involve complex medical matters beyond the scope of a layperson. The question of etiology for this issue goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's and Appellant's assertions that the Veteran's COPD was due to asbestos exposure in service. See October 2017 Board hearing transcript. Indeed, the Veteran's service personnel records show that he served as a mechanic. However, the Veteran's service treatment records do not reflect that the Veteran had any complaints, treatment, or diagnoses related to COPD during his periods of active service. The Veteran's May 1962 Report of Medical Examinations at separation indicates that clinical evaluations of his lungs and chest were normal. The Veteran did not report shortness of breath or pain/pressure in his chest at discharge. However, the Veteran did report several other medical conditions that are also consistent with the Appellant's testimony that the Veteran may have been allergic to his life vest in service. See October 2012 transcript. Furthermore, the Appellant has not provided any medical opinion to support service contention. As discussed, the probative evidence of record, does not establish that the Veteran's COPD was caused by his asbestos exposure during his active service, and there is no other basis upon which to afford service connection. Accordingly, the criteria for service connection have not been met, and the claim is denied. IV. Accrued Benefits The Appellant is seeking accrued benefits from the Veteran's pending service connection claim for COPD. Applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). A claim for such benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(a) (c). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, 'the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision.' See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application). The term 'pending claim' means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2016). The term 'finally adjudicated claim' means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104. 'Evidence in the file at date of death' means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d) (4); Hayes v. Brown, 4 Vet. App. 353 (1993). The Board notes that the in December 2006 the Veteran filed a claim to reopen a claim for entitlement for service connection for COPD that was previously denied in August 2000 and final. As noted above the Board decision granted the Veteran's reopening claim. The Veteran died in April 2007. The Board acknowledges that the Veteran had a pending claim at his time of death. Although the Appellant surviving spouse raised the issue of accrued benefits in November 2009, she initially filed her DIC claim in July 2007 and would qualify for filing benefits within one year of the veteran's death. 38 C.F.R. § 3.1000(a) (c). However, the Veteran's pending claim was for COPD, which he claimed was a result of asbestos exposure during active service, and there is no indication in the record as of the date of the Veteran's death (or after death) that the VA or private medical professionals attributed the Veteran's COPD to either his military service, or to a service connected condition; and the COPD was diagnosed decades after separation from service. After reviewing all the evidence of record, which was largely described in the discussion of service connection for the cause of death section of this decision, the Board finds the probative evidence weighs conclusively against finding that the Veteran's COPD was etiologically related to service. As such, the appellant's claim is denied. ORDER The appeal of entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is dismissed. Service connection for the cause of the Veteran's death is denied. Service connection for COPD for accrued benefits purposes is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs