Citation Nr: 1806572 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-34 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant Veteran's Daughter ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran had active service from July 1959 to June 1961. The Veteran died in August of 1993. The Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) from a Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO) rating decision in January 2014. The Appellant testified at a hearing before the undersigned Veterans Law Judge in November 2017 at the Muskogee, Oklahoma RO. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died from, or as a consequence of, a head injury. 2. A service connected disability was not the immediate or underlying cause of the Veteran's death, and a service connected disability was not etiologically related to the cause of the Veteran's death. 3. At the time of his death, the Veteran was not in receipt of service connection for any disabilities and did not have any claims pending before VA. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131. 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. 38 C.F.R. § 3.303(d). To establish service connection for the cause of the Veteran's death, the evidence must show that the disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2) (2017). In this case, the Veteran died in August 1993. The death certificate of record reports the cause of death as massive head injury. The Appellant alleges that the Veteran suffered from asbestosis or chronic obstructive pulmonary disease (COPD) and that at the time of this death, the Veteran was riding a horse, suffered a breathing episode, fell from the horse and suffered a head injury, which ultimately caused his death. The Appellant contends that the Veteran's breathing problems are directly related to his active service. At the time of the Veteran's death, the Veteran was not service connected for any disabilities, nor did he have any pending claims with VA. In a November 2017 travel board hearing, the Appellant and the Veteran's daughter offered testimony to support the claim. The Appellant testified that the Veteran was diagnosed with asbestosis or COPD a few years prior to his death. The Appellant testified that the Veteran did not smoke. The record shows the Veteran was previously employed as a pipe fitter and a rancher. The Appellant testified that the Veteran's employer provided him with an examination which proved positive for asbestosis. The Appellant further testified that the Veteran, as far as she knew, did not receive treatment for this diagnosis. The Veteran did not use inhalers or take medicine for his breathing, according to the Appellant. The Appellant testified that she witnessed the Veteran become short of breath as a result of the alleged diagnosis. The Appellant further testified that the Veteran's son witnessed the Veteran's fall from the horse. She testified that the Veteran's son is the one who reported believing the Veteran experienced a breathing attack before falling from the horse. The Appellant testified that she believed the Veteran was trying to get off the horse because "the horse was acting up." See November 2017 Hearing Transcript at page 15. The Appellant did not witness the Veteran's fall. The Veteran's daughter testified that she has also, on previous occasions, witness him become short of breath and weak upon standing and walking across a room. She testified that when he experienced a breathing attack or spell, he often became "grey" in color. She testified that her brother, who was present at the time of the Veteran's fall, said his pallor was grey that day. The Veteran's daughter testified that she is a nurse. The Veteran's daughter did not witness the Veteran's fall. The Board finds the Appellant and the Veteran's daughter to be competent when describing what they observed regarding the Veteran's experience catching his breath, the Veteran's breathing issues, and fatigue or weakness. However, the Board does not find the Appellant, nor the Veteran's daughter, competent to associate these observations with a diagnosis of asbestosis or COPD. Further, neither the Appellant, nor the Veteran's daughter is competent to report observations about the Veteran or his death neither of them observed directly. There is no lay statement provided from the Veteran's son who was present at the time of the Veteran's fall from the horse. 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 M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The Board notes that neither the VA Manual nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. There is no medical evidence of record to show the Veteran has a diagnosis of, or tested positive for, asbestosis or COPD. Additionally, there is no evidence in the claims file linking the Veteran's trouble breathing to his active military service. Because the Veteran had no active service connection claims in effect at the time of his death and there is no evidence that the Veteran's observed trouble breathing was caused by or the result of his active military service, service connection for cause of death is denied. As the weight of the evidence is against the claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for cause of death is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs