Citation Nr: 18160034 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-26 586 DATE: December 20, 2018 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in September 2010, and the immediate cause of death was cardiopulmonary arrest with contributing conditions to include metastatic lung cancer. 2. At the time of his death, the Veteran was not service-connected for any disability. 3. The Veteran’s lung cancer did not have its onset in service or manifest to a compensable degree within one year of separation from service, is not otherwise related to service, to include asbestos exposure therein. 4. The cause of the Veteran’s death has not been shown to be etiologically related to any disease, injury, or event in service, to include asbestos exposure therein. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1944 to May 1946. He died in September 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Board remanded the appeal for additional development. In March 2018, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA), which was provided in March 2018. The appellant was provided with a copy of the opinion and given 60 days to respond. See 38 C.F.R. § 20.903(a). The appellant asserts that the Veteran’s lung cancer, which caused his death, was caused by his in-service asbestos exposure. See March 2012 Notice of Disagreement. In a July 2017 written statement, the appellant indicated that the Veteran worked on a farm prior to service and as a barber post-service. In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. See 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. Id. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the Veteran’s death certificate states that he died in September 2010 and that the immediate cause of death was cardiopulmonary arrest with contributing conditions to include metastatic lung cancer. At the time of his death, service connection was not established for any disability. In deciding the claim for service connection for the cause of the Veteran’s death, the Board must also consider whether the disabilities that caused the Veteran’s death may be service-connected. The Board will focus its analysis on whether the Veteran’s lung cancer may be service-connected, as the appellant has not alleged that the cardiopulmonary arrest was related to service and there is no suggestion in the record that the cardiopulmonary arrest was somehow related to service. As previously noted, the Veteran had a diagnosis of lung cancer, satisfying element one of service connection. Concerning in-service incurrence, the appellant does not assert that the Veteran had a respiratory disease during service, and the Veteran’s service treatment records are negative for complaints, findings, diagnosis, or treatment for respiratory disorders or lung cancer. A May 1946 separation examination report notes normal findings of the lungs and chest, to include a negative March 1946 x-ray report of the chest. With respect to in-service injury, although no chronic or recurring lung or respiratory disease was documented during the Veteran’s active duty service, the Veteran’s DD Form 214 indicates that his military occupational specialty (MOS) was a seaman, which carries a minimal risk of asbestos exposure. Thus, the second element of service connection is also established as to an in-service injury. The Veteran’s initial lung cancer diagnosis was rendered in June 2010 (64 years after service), following a complaint of chest pain. See August 2010 Hospice Care Initial Certification. Thus, there is no competent evidence of a malignant tumor (lung cancer) in service or within one year following discharge from service to allow for presumptive service connection, and the appellant does not contend otherwise. 38 U.S.C. §1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, the appellant does not contend that the Veteran’s lung cancer was associated with service for reasons other than asbestos exposure. With regard to the final element, nexus, in April 2011, Dr. G.M., submitted a letter stating that it is “possible” that the Veteran’s lung cancer was related to asbestos exposure. The Board has determined that VA medical opinions obtained in June 2015 and July 2017, to include the November 2017 addendum opinion, are inadequate. Specifically, the June 2015 examiner provided a negative opinion with the sole rationale that the Veteran’s probability of exposure was “minimal” due his MOS. Further, the July 2017 examiner determined that there was “no evidence of any actual exposure to asbestos” in service. Thus, in March 2018, the Board sought an expert medical opinion from the VHA. In a March 2018 report, the VHA expert, a pulmonologist, opined that it was less likely than not that in-service asbestos exposure contributed to the Veteran’s lung cancer diagnosis decades later and his subsequent death. The expert explained that “asbestos is the dominant cause of mesothelioma, a thoracic malignancy of the pleura, but is not known to be an independent risk for lung cancer. Asbestosis is a fibrosing pulmonary disease found in a percentage of individuals with repeated exposure to high levels of particulate asbestos.” Notably, the expert found no medical documentation to support a diagnosis of asbestosis. He concluded that: although it can be conceded the patient would have been in proximity to asbestos (i.e. insulation) on board ship, it is unlikely he would have been exposed to particulate asbestos (dust) in sufficient amount to be at risk for asbestosis in his capacity as seaman. This alone makes it very unlikely (less than 50% likelihood) that his lung cancer is a service connected condition. The Board finds the March 2018 medical opinion to be adequate. The expert reviewed the Veteran’s claims file, to include service treatment records and medical treatment records. Further, the expert acknowledged the Veteran’s minimal probability of in-service exposure to asbestos. In light of the expert’s consideration of the contentions regarding asbestos exposure and the Veteran’s personal medical history, the Board finds the March 2018 VHA expert’s opinion to be more probative than Dr. G.M.’s April 2011 opinion. Dr. G.M.’s statement was speculative, as he stated that it was “possible” that the Veteran’s lung cancer was related to service. Therefore, the Board finds that the April 2011 medical opinion is vague and of no probative value, as it does not specifically discuss the Veteran’s asbestos exposure and does not provide a rationale for the opinion rendered. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder “may or may not” be related to service is too speculative to establish any such relationship). To the extent the appellant attributes the Veteran’s lung cancer to asbestos exposure in service, she does not have the requisite expertise to address a complex medical question such as the etiology of lung cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, for reasons outlined above, the preponderance of the evidence is against the conclusion that the Veteran’s listed causes of death, metastatic lung cancer and cardiopulmonary arrest, were incurred in or aggravated during military service, including on any presumptive basis. Accordingly, the benefit-of-the-doubt doctrine is not applicable, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel