Citation Nr: 18107714 Decision Date: 06/04/18 Archive Date: 06/02/18 DOCKET NO. 16-55 416 DATE: June 4, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran passed away in February 1999 as a result of congestive heart failure due to or as a consequence of congestive cardiomyopathy with the other significant conditions of diabetes mellitus and peripheral vascular disease. 2. The preponderance of the evidence fails to establish that the Veteran was exposed to asbestos in service, or that exposure to asbestos is medically associated with his causes of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been satisfied. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1943 to April 1946. He served honorably in the United States Army. He passed away in February 1999 and the Appellant is the Veteran’s surviving spouse. The Board thanks the Appellant for the Veteran’s honorable service to our country during World War II. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2018, the Appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for the cause of the Veteran's death Legal Criteria To establish service connection for the cause of a Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or 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. See 38 C.F.R. § 3.312(c)(1). VA’s duty to assist an appellant in fully developing a service connection for cause of death claim may include obtaining potentially relevant records and a medical opinion when necessary to make a decision on the claim. This additional obligation does not apply if there is no reasonable possibility the assistance would aid in substantiating the claim, however. In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit indicated that, although 38 U.S.C. § 5103A does not always require VA to assist a claimant in obtaining a medical nexus opinion for a Dependency and Indemnity Compensation (DIC) claim, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim. See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). Here, consistent with the statute and case law, the Board finds “no reasonable possibility” that obtaining a VA opinion would help substantiate the claim. Aside from the appellant's assertions, there is no medical or lay evidence underpinning her arguments. There is no evidence in the claims file or the available service records that connect any of the Veteran's causes of death to his active service. There is simply no competent suggestion from any medical professional that the Veteran’s congestive heart failure due to or as a consequence of congestive cardiomyopathy with the other significant conditions of diabetes mellitus and peripheral vascular disease was in any way the result of his military service. The Veteran’s cardiovascular system and lungs were noted to be normal at the time of his separation from service. 38 U.S.C. § 5103A(a) mandates that a reasonable possibility exists for the medical opinion to help the appellant’s case. Here, to find that an opinion is necessary would simply not be a reasonable conclusion. In the absence of such evidence, the Board finds that remanding the claim to obtain a VA medical opinion regarding the Veteran's death has no reasonable possibility of substantiating the claim. Service connection may be awarded with a showing of 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). The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. VA’s M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, including asbestosis or interstitial pulmonary fibrosis; tumors; pleural effusions and fibrosis; pleural plaques, mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). See M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2(b). However, service connection is not automatic and a probative medical nexus opinion is still required. The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(d). The M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(g). For the purposes of evaluating evidence, to include lay statements about a veteran’s heath conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Analysis Here, the Appellant seeks service connection for the cause of the Veteran’s death. The Appellant is the Veteran’s surviving spouse. The Veteran’s death certificate reflects that he passed away in February 1999 as a result of congestive heart failure due to or as a consequence of congestive cardiomyopathy with the other significant conditions of diabetes mellitus and peripheral vascular disease. At the time of his passing, the Veteran was not service-connected for those conditions nor any other disabilities. The Appellant contends that the Veteran’s causes of death should be service connected because they were the result of his exposure to asbestos in service. Specifically, it is contended that the Veteran was exposed to asbestos aboard a battleship and in his living quarters at Fort McPherson. The Board notes that throughout this claim the Appellant has consistently contended that asbestos exposure, alone, is associated with the Veteran’s death. See, e.g., August 2013 Statement in Support of Claim; March 2018 Videoconference Board Hearing. The Veteran passed away with congestive heart failure due to or as a consequence of congestive cardiomyopathy with the other significant conditions of diabetes mellitus and peripheral vascular disease as documented on his February 1999 death certificate. However, none of the Veteran’s causes of death are contemplated by the M21-1 list of asbestos-related diseases/abnormalities, to include lung conditions like mesothelioma. The preponderance of the evidence is against a finding that the Veteran was exposed to asbestos in service. The Veteran’s Separation Qualification Record shows that he served as a munitions worker and mail orderly in service. As before, the Board notes that these jobs are not contemplated by the M21-1 list of occupations that have higher incidents of asbestos exposure, to include construction workers. As to the Appellant’s claim that the Veteran was exposed to asbestos during his service by other means, the Board concludes that the preponderance of the evidence is against such a finding. Records of the Veteran’s service include certain personnel and service treatment records, including his service separation examination. These records were associated with the file in the 1940s. Thereafter, efforts to obtain any additional service records, to the extent they exist, were unsuccessful as there was a fire at the records facility in 1973. See June 2017 Formal Finding of Unavailability. The available records do not indicate exposure to asbestos or associated medical conditions. On the contrary, the Veteran’s separation medical examination dated April 1946 shows “normal” lung and cardiovascular health. Even assuming that the Veteran was exposed to asbestos in service, service connection for the Veteran’s cause of death would still not be warranted because there is no competent medical evidence of a link between asbestos exposure and the Veteran’s congestive heart failure, congestive cardiomyopathy, diabetes mellitus, or peripheral vascular disease, nor is there a competent medical opinion   that a related condition like asbestosis was present but not named as a cause of death on his death certificate. In sum, based on a review of all the evidence of record, the Board determines that the Appellant’s claim is not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fales, Associate Counsel