Citation Nr: 18158184 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-10 563A DATE: December 14, 2018 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The nature of the Veteran’s duties during active service were such that it is likely he was exposed to asbestos. 2. Service connection was not established for any disability at the time of the Veteran’s death; his death certificate lists the immediate cause of death as cardio-pulmonary arrest, due to or as a consequence of acute myocardial infarction, due to or as a consequence of chronic obstructive pulmonary disease (COPD) exacerbation. 3. The competent medical opinions as to whether the Veteran’s COPD that was a contributing cause of death was due to active service to include asbestos exposure therein are in equipoise. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1965 to May 1969 and from August 1973 to November 1976. He died in December 2011. The appellant is his surviving spouse. The appellant provided testimony before the undersigned Veterans Law Judge at a September 2018 hearing at the Regional Office (RO). A transcript is in the claims file. The appellant contends that the Veteran’s death was the result of injury or disease incurred due to active service. Specifically, she contends that the Veteran was exposed to asbestos during active service. She believes that this exposure caused or contributed to the Veteran’s lung cancer, which in turn was a contributing cause to his death. Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). 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. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, 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 record shows that the Veteran was not service connected for any disability at the time of his death. Therefore, the Board will determine whether the disability that resulted in his death was incurred due to active service. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a DIC claim based on cause of death, the first requirement, “evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die)”. Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). If malignant tumors become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of tumors during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303 (d). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The claims file includes a copy of the Veteran’s Death Certificate. This shows that he died on December [redacted], 2011. The place of death was a hospital, and an autopsy was not performed. The immediate cause of death was listed as cardio-pulmonary arrest, due to or a consequence of acute myocardial infarction, due to or as a consequence of COPD exacerbation. In this case, the Veteran’s DD 214 for his second period of service from August 1973 to November 1976 shows that he served in the Navy as a machinist mate. Given this specialty, it has been likely that the Veteran was exposed to asbestos as consistent with types, duties, and circumstances of his service. Furthermore, although the entrance examinations for both of the Veteran’s periods of active service state that the chest and lungs were normal and included a chest X-ray considered to be within normal limits, his service treatment records include a report of a March 1974 chest X-ray. This x-ray revealed multiple nodules scattered throughout both lung fields. The examiner felt these were most likely the sequelae of a previous granulomatous disease. There was no evidence of active disease on the examination, and the lung fields were otherwise clear with the heart within normal limits. The remaining service treatment records are negative for any complaints or findings regarding asbestos, the lungs, or chronic obstructive pulmonary disease. The November 1976 discharge examination found that the lungs and chest were normal, and that a chest X-ray was within normal limits. To establish service connection for the cause of the Veteran’s death, it is not sufficient to show exposure to asbestos during service, or a suspicious X-ray finding. There must be medical evidence of a relationship between these things and the COPD which contributed to the death of the Veteran. To determine whether there was such a relationship, the Board will briefly review the most relevant portions of the medical record, and then turn to the opinions that have been provided by medical professionals. Private medical records from May 2005 show the Veteran was experiencing severe right groin pain following a catheterization the previous week. The assessments included coronary artery disease, status post myocardial infarction in 1995, and status post stents times five between 1995 and 1997. Private medical records from August 2008 state that the Veteran was seen following a history of hoarseness for three weeks. A mass of the vocal cords was noted during bronchoscopy. It was significant that the Veteran had been a smoker for the past 30 years, smoking three packs of cigarettes a day. A computed tomography (CT) scan also obtained in August 2008 noted soft tissue filling the right upper lobe bronchus and segmental branches, which was felt to indicate malignancy or fungal disease. There were also calcified pleural plaques involving the posterior thorax and the diaphragm. This was to be correlated with any prior asbestos exposure. Evidence of reticular interstitial lung disease that could be due to asbestos exposure or atypical infections such as fungal disease or tuberculosis was also noted. Given the pleural plaque, it was believed the interstitial lung disease could represent asbestosis. Additional private medical records from August 2008 show that the Veteran was seen for a consultation following the discovery of a lung mass. There was a strong suspicion of bronchogenic carcinoma. A bronchial biopsy in August 2008 confirmed squamous carcinoma in situ. An October 2008 letter from W.R.M., M.D. notes that the Veteran has been under his care for lung cancer. CT scanning of the chest had revealed pleural thickening and calcified plaques, which are characteristic of asbestos exposure. Patients with asbestos exposure were known to have increased risk for lung cancer. It was the doctor’s opinion that the Veteran had radiographic evidence of prior asbestos exposure and also had lung cancer. A December 2008 private medical record from W.R.M., M.D. states that a physical examination resulted in impressions that included squamous cell carcinoma of the right upper lobe status post neoadjuvant therapy, and asbestos plaquing. Additional December 2008 private hospital records include a surgical report that shows the carcinoma of the right upper lobe was removed. The post-operative diagnoses also included asbestosis. Following the removal of the Veteran’s cancer, he apparently did well for the next two years, but began to have additional complaints in late 2010. A CT scan of the head in May 2011 notes the Veteran had experienced a stroke one month ago with right-sided numbness. X-ray studies from 2011 continued to show plaques and fibrotic changes. A September 2011 X-ray study adds that asbestosis is the differential diagnosis given the presence of dense pleural plaques in the lung bases. The Veteran was hospitalized on several occasions in 2011 due to increasing shortness of breath. A November 2011 letter from D.W.S., M.D., the Veteran’s oncologist, notes that the Veteran had been diagnosed with stage III non-small cell lung cancer approximately three years ago and had remained in remission ever since. There was some PET-positivity in the right apex which was believed to represent scarring from his previous treatment. He did not have any current evidence of active lung cancer, and there was a possibility he was cured. His lung cancer would not prevent his return to work, although he had experienced several strokes that made him disabled and unable to drive his truck. Three days prior to his death in December 2011, the Veteran was readmitted to the hospital with more complaints of shortness of breath. The diagnostic impressions were many, but included acute exacerbation of chronic obstructive pulmonary disease with chronic hypoxemic respiratory failure; paroxysmal atrial fibrillation; and acute on chronic congestive heart failure; as well as coronary artery disease with prior myocardial infarction and stent placement; and status post squamous cell carcinoma of the lung. Handwritten notes from the time of admission show that the Veteran was experiencing progressive shortness of breath and productive cough. There had recently been frequent admissions for shortness of breath (COPD v. CHF), and ongoing tobacco abuse. Additional notes show that three days later, the Veteran was found to be not responding or breathing. He was noted to be Do Not Resuscitate, and he was reported to have expired secondary to cardiopulmonary arrest, with acute myocardial infarction and COPD exacerbation. A history of esophageal cancer was also noted. A March 2014 letter from the Veteran’s oncologist, D.W.S., M.D. recounted the history of the Veteran’s cancer and other illnesses. A July 2011 scan had showed he was still in remission, but a CT scan in December 2011 showed a new lymph node, and worsening pleural effusions. He was admitted to the hospital for management of pneumonia, and died suddenly. This doctor notes that he did not fill out the death certificate, and the cause of “cardiopulmonary issues” that was given was not very helpful. The doctor noted that there was a high risk of relapse for the Veteran’s type of cancer, and while there was no definite proof relapse occurred prior to his death, there were suspicious findings that probably led to his death. The doctor believed that the Veteran “quite possibly may have had recurrent disease shortly before he died.” In a March 2014 document entitled Physician’s Statement, the medical condition that was claimed was described as asbestos exposure contributing to cardio-pulmonary arrest and COPD exacerbation. The doctor checked a box that said “One cannot say exactly how long this condition existed prior to date of diagnosis but this type of disability could be present for years before becoming symptomatic. It is my opinion that this condition could have as likely as not been caused or aggravated by the Veteran’s active duty service time.” This statement was signed by W.R.M., M.D. Two additional letters were received from D.W.S., M.D. in July 2014. In the first, he states that he was recently provided with an October 2008 letter from W.R.M., M.D. that noted the Veteran’s history of asbestos exposure, which in the setting of smoking substantially increased the risk of lung cancer. The second letter clarified that the Veteran’s tumor had been lung primary, as tumors seen in the bronchus are almost always lung primaries. A medical opinion was obtained from a VA doctor in September 2014. The service treatment records and post-service private medical records were reviewed by this doctor. She states that the service treatment records were reportedly negative for documentation of any respiratory conditions, and a September 1981 chest x-ray was normal. The Veteran’s death certificate with the causes of death was noted, as were the 2008 private records that showed findings characteristic of asbestos exposure. The letters from the Veteran’s two private doctors were also reviewed. The VA examiner provided an opinion that it was at least as likely as not that the Veteran’s lung cancer was related to his in-service asbestos exposure. She noted the X-ray findings as well as a literature review, and stated that inhalation of asbestos fibers had been linked to an increased risk of lung cancer. Therefore, it was at least as likely as not the Veteran’s asbestos exposure in service contributed to the development of lung cancer in addition to his significant smoking history. However, this doctor was unable to determine if the Veteran’s lung cancer contributed to his death without resorting to speculation. The records from the final hospitalization were not yet ready for review. Although the chance that the Veteran’s cancer had returned was noted, it could not be confirmed without the hospital records. The Veteran also had confirmed coronary artery disease with history of myocardial infarction. While COPD was listed as a condition contributing to death, there were no specific medical records relating to the severity of this COPD. An additional VA medical opinion from a second doctor was obtained in April 2015. On this occasion, the claims file with the terminal hospital records was available for review. The examiner was to opine whether the Veteran’s lung cancer was related to service and whether the lung cancer caused or helped cause his death. He concluded that it was less likely than not that the cause of death was incurred in or caused by the lung cancer. The rationale was that the Veteran had endobronchial squamous cell carcinoma after years of tobacco smoking, which was the cause of his cancer. Asbestos lung cancer was related to parenchymal, and not endobronchial, cancer according to a VA asbestos website. The examiner believed it was less likely than not that the endobronchial cancer was related to asbestosis. The Veteran had died of myocardial infarction while his cancer was in remission. There was speculation the cancer could have come out of remission, but no documentation the cancer caused or helped cause the Veteran’s death. He said the Veteran’s COPD was from his years of smoking, and not from the lung cancer that had been successfully treated. The examiner concluded that the Veteran’s lung conditions at the time of death were from years of smoking with COPD and myocardial infarction, and not from his remote lung endobronchial cancer. After consideration of the evidence and in particular the medical opinions that weigh both for and against the appellant’s claim, the Board finds that they are in relative equipoise on this material issue. As such, service connection for the cause of the Veteran’s death is established. The Board observes that the VA opinions are contradictory, in that the September 2014 opinion found the Veteran’s lung cancer was related to asbestos exposure during service, but the April 2015 opinion found that it was not. Although the April 2015 opinion provided reasons and bases as to why the Veteran’s lung cancer was not related to asbestos exposure, it also indicated that the Veteran had a separate diagnosis of COPD that was unrelated to the cancer. It further found that that the COPD was due to smoking and not asbestos exposure, but did not provide any reasons or bases to support this conclusion, and failed to address the previous diagnosis of asbestosis. The Board also notes that neither opinion addressed the significance, if any, of the multiple nodules scattered throughout both lung fields on the March 1974 X-ray found in the service treatment records. The Board observes that this would have been obtained after and during the Veteran’s exposure to asbestos. Also, the Board notes that while the letters from D.W.S., M.D. include some valuable background regarding the Veteran’s medical history, they at best raise the possibility that his death was related to his lung cancer, and in turn the possibility that this cancer was related to asbestos exposure in service. A mere possibility does not equate to as likely as not, and does not suffice to support service connection. However, the March 2014 statement from W.R.M., M.D. says it is as likely as not that the cause of the Veteran’s asbestos exposure contributing to cardio-pulmonary arrest and COPD exacerbation was related to active service. These were the stated causes of the Veteran’s death on both the death certificate and in the nursing records. Significantly, this doctor does not relate the Veteran’s in-service asbestos exposure to the lung cancer that was in remission, but instead relates his asbestos exposure to the COPD. This is consistent with the previous diagnoses of asbestosis, and as the evidence shows COPD in addition to the lung cancer, this means it is not necessary to show that the lung cancer had returned prior to the Veteran’s death. Finally, W.R.M., M.D. even notes that the Veteran’s condition was of a type that could have been present for many years without manifesting. Although he also failed to discuss or perhaps did not know about the March 1974 X-ray findings in-service, his opinion that the Veteran’s condition may have been present for many years without manifesting is consistent with these findings. The Board concludes that the evidence for and against the appellant’s claim is in equipoise, and entitlement to service connection for the cause of the Veteran’s death is established. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel