Citation Nr: 18149727 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-57 713 DATE: November 13, 2018 ORDER Entitlement to service connection for obstructive airway disease as a result of asbestos exposure, for accrued benefits purposes, is granted. FINDINGS OF FACT 1. The Veteran was exposed to asbestos in service. 2. Resolving reasonable doubt in the Veteran’s favor, his obstructive airway disease is at least as likely as not related to his asbestos exposure in service. CONCLUSION OF LAW The criteria for service connection for obstructive airway disease, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137; 38 C.F.R. §§ 3.303, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1958 to October 1962. The Veteran died in December 2014, and the Appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in September 2013 and a statement of the case was issued in October 2016. The Appellant filed a timely VA Form-9 in November 2016 and elected not to have an optional Board hearing. Accrued Benefits 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). 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 Veteran’s date of death occurred in December 2014. The Board acknowledges that the Veteran had a pending claim at the time of death, and the Appellant is the surviving spouse of the Veteran; therefore, the Appellant is proper for substitution under the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008); 38 C.F.R. § 3.1010. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. 1. Entitlement to service connection for obstructive airway disease as a result of asbestos exposure, for accrued benefits purposes The Appellant is seeking service connection for obstructive airway disease, for accrued benefits purposes. The Appellant contends that the Veteran’s exposure to asbestos in service caused his lung condition. The Veteran died in December 2014, with the immediate causes of death listed as congestive heart failure, coronary artery disease, and diabetes mellitus. The significant conditions contributing to death were listed as chronic kidney disease and asbestosis (treated in Atlanta, GA). See death certificate. As an initial matter, the Board notes that the Veteran’s military occupational specialty (MOS) was a woodworker. See military personnel records. Accordingly, his exposure to asbestos has been conceded by the VA. The Veteran’s medical records include private medical records from June 2012 showing a diagnosis for obstructive airways disease, with a note questioning the history of asbestosis with positive exposure for approximately 4-5 years. In September 2013 correspondence, the Veteran’s private physician noted that the Veteran’s history was notable for a marked and protracted exposure to asbestos. The physician explained that given the Veteran had no smoking history, the evidence suggests that he has obstructive airways disease related to his asbestos exposure which has been described in numerous studies that demonstrate a statistically significant increase in COPD in those patients exposed to occupational dust such as asbestos or silica. The Veteran was provided with a VA respiratory conditions examination in September 2013 which showed a diagnosis for restrictive ventilatory disorder. The VA examiner noted that there is no objective evidence that the Veteran’s restrictive respiratory defect is related to the Veteran’s claimed asbestos exposure, if any. In a December 2014 VA medical opinion, a VA examiner opined that the Veteran’s obstructive airway disease was less likely than not caused by his service. The examiner noted that the Veteran’s pulmonary function tests are consistent with restrictive lung disease and not obstructive lung disease. The chest x-ray and chest CT do not show any evidence of asbestos related disease. Also, the Veteran’s exposure to asbestos was for a limited period of time and his job that he performed while in the Air Force is not documented. In a May 2016 VA medical opinion, a VA examiner opined that the Veteran’s lung condition was less likely than not caused by his service. The examiner noted that there was no radiographic evidence of asbestosis, or asbestos exposure. She added that the Veteran was exposed to asbestos for a limited period of time. Therefore, the examiner noted that it is less likely than not that the Veteran’s death, which was caused by congestive heart failure, was a result of in-service asbestos exposure. The Board finds that with the resolution of reasonable doubt in favor of the Appellant, she is entitled to service connection for obstructive airway disease as a result of asbestos exposure, for accrued benefits purposes. The Board finds that the private opinion provided in September 2013 establishing a link between the Veteran’s lung condition and his exposure to asbestos in service was supported by an adequate rationale. Although the Veteran’s medical record includes VA opinions providing negative nexus statements, the Board finds that the Appellant has put this issue in equipoise. Resolving all reasonable doubt in the Appellant’s favor, entitlement to service connection for obstructive airway disease as a result of asbestos exposure, for accrued benefits purposes is warranted here. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel