Citation Nr: 19102516 Decision Date: 01/10/19 Archive Date: 01/09/19 DOCKET NO. 13-05 785 DATE: January 10, 2019 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 1982. The death certificate lists the cause of death as bronchopneumonia and mesothelioma of the lungs, with a contributing cause identified as clinical history of exposure to asbestos. 2. At the time of the Veteran’s death, he was not service connected for a lung disability or any other disability. 3. A disability of service origin did not cause or contribute substantially or materially to the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1941 to April 1945. He died in October 1982 and the appellant in this matter is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Board remanded this matter for additional development. Before assessing the merits of the appeal, VA’s duties under the Veterans Claims Assistance Act (“VCAA”) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Specific to claim for dependency and indemnity compensation (“DIC”) benefits based on service connection for the cause of a veteran’s death, VA’s notice requirements include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In letters issued in March 2011, February 2012, April 2015, and August 2018 VA notified the appellant of the information and evidence needed to substantiate and complete her claim for service connection for the cause of the Veteran’s death, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant also was informed of when and where to send the evidence. The March 2011 notice letter specifically informed the appellant of the conditions for which the late Veteran was service-connected at the time of his death (no service-connected disabilities), and provided an explanation of the evidence and information required to substantiate a DIC claim based on previously service connected conditions, and based on conditions not yet service-connected (consistent with Hupp). After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the appellant be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112, 118 (2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that VA has complied with the VCAA’s duty to assist, by aiding the appellant in obtaining evidence and providing her the opportunity to submit written testimony to the Board. In lieu of a hearing, the appellant provided written testimony in February 2016. Attempts were made to obtain the Veterans service treatment records, personnel records, and post-service medical treatment records. See 3/8/ 2011 and 8/30/2018 VA 21-3101 Request for Information. The service records were presumably destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The Board has and will treat this appeal accordingly, as described in more detail below. The Board also notes that post-service private medical records were not obtained as they had already been destroyed and the appellant did not submit any medical records. In a March 2015 correspondence from the appellant’s representative, it was noted that the appellant did not have the medical records from the Long Beach hospital from 1982. It appears the VA has attempted to obtain all known and available records relevant to the issue on appeal and the appellant has not contended otherwise. An April 2015 correspondence from MemorialCare MedicalCenters (in Long Beach, CA) in response to a VA records requests reflects that no records exist. See 4/15/ 2015 Third Party Correspondence. While the Veteran’s service personnel records have not been obtained as they were destroyed in a fire, the Board finds that the AOJ substantially complied with the Board’s May 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 at 271 (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As noted briefly above, following the Board’s May 2016 remand, the AOJ contacted the appellant and requested that she complete and return NA Form 13055 so that an attempt to reconstruct service records could be made. See 8/23/ 2018 MAP-D Development Letter. The appellant did not respond to the AOJ’s request, and since that time neither she nor her representative have submitted any other records. Therefore, the Board finds that the AOJ substantially complied with the Board’s May 2016 remand directive(s). As noted above, the late Veteran’s service treatment records and personnel records, have not been obtained or associated with the electronic claims file. They were reported as lost in a fire by the National Personnel Records Center. See 3/8/ 2011 and 8/30/2018 VA 21-3101 Request for Information. Where service records have been lost or destroyed through no fault of the Veteran, the United States Court of Appeals for Veterans Claims (“Court”) has held that there is a heightened obligation on the part of VA to assist the appellant in pursuit of their claim, including a duty to inform the appellant that she can submit “alternative” sources of evidence in place of the missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Moreover, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Although case law does not lower the legal standard for proving a claim of service connection, it does increase the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Furthermore, there is no presumption, either in favor of the Veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). As applied to the appellant’s claim, the Board observes that the March 2011 VCAA notice to the appellant informed her that she could submit additional, alternative sources of information in support of her claim. This VCAA notice additionally provided the appellant with information on what specific information her claim must show in order to prevail. In light of the above described actions, the Board finds that the AOJ complied with its heightened duty to assist the appellant in substantiating her claim for entitlement to service connection for the cause of death of the late Veteran. See Dixon, 3 Vet. App. at 263. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA regulations provide the death of a veteran will be considered due to a service-connected disability when the evidence establishes that such disability was either a principle or a contributory cause of death. See 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.310, 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is one which contributes substantially or materially to death, that combined to cause death, or aided or lent assistance to the production of death. It is inherently one not related to the principal cause. 38 C.F.R. § 3.312 (c). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations regarding such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as 7.21 of VBA’s Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). Although VA manuals like the M21-1 may not be in all cases be binding on an agency, Disabled Am. Veterans v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017), the Board is not free to simply ignore the Secretary's guidance on an issue. See 38 C.F.R. § 19.5 ("In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs."). However, the U.S. Court of Appeals for Veterans Claims (Court) has held that “the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Court added that the Board is required to provide a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision. Id. The Board finds that the M21-1 provisions regarding provide an accurate guideline for assisting the Board in adjudicating this appeal. In this regard, the Board notes that this history of VA looking at asbestos and the effects of exposure to is long. The Court has looked at the asbestos issue, to include VA’s manual and circular goes back over 20 years. In Dyment, 13 Vet. App. at 146, the Court old that neither the M21-1 nor the circular created a presumption of exposure to asbestos solely from shipboard service. 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 insulation and shipyard workers 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. Id. Additionally, the Board notes that VA likely developed these guidelines to inform adjudicators by consulting experts in the appropriate field(s) and with other Departments, such as the Department of Defense. In light of the foregoing factors, the Board will utilize the M21-1 as a factor – an accurate guideline – in adjudicating this appeal along with the applicable laws, regulations, caselaw, and opinions from VA’s Office of General Counsel. This non-binding guidance indicates that the adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related disease/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions, and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, IV.ii.2.C.2.b. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 1. Entitlement to service connection for the cause of the Veteran’s death The appellant asserts that the lung disability which caused the Veteran’s death is a result of exposure to asbestos aboard vessels during his documented service as an able seaman in the Merchant Marines. In support of her claim, she submitted a publication in April 2012 entitled “Naval Battleships and Asbestos Exposure” that listed one of the ships the Veteran is documented to have served on from February 1943 to August 1943, the New York, as being one of the vessels that involved exposure to asbestos. See DD Form 214. She also submitted a document listing the duties of an able seaman. The death certificate submitted by the appellant lists the cause of death as bronchopneumonia and mesothelioma of the lungs, with a contributing cause identified as clinical history of exposure to asbestos. The death certificate also noted that the Veteran worked in a shipyard as a seaman for forty-two years until his death. The Board finds that service connection is not warranted for the cause of the Veteran’s death on either a direct basis or a presumptive basis. The Board makes this conclusion following a thorough review of the evidentiary record, including medical evidence as well as statements submitted by the appellant. As an initial determination, the Board finds that the Veteran was not service-connected for the cause of his death, bronchopneumonia and mesothelioma of the lungs. As previously noted, the death certificate submitted by the appellant lists the cause of death as bronchopneumonia and mesothelioma of the lungs, with a contributing cause identified as clinical history of exposure to asbestos. At the time of the Veteran’s death, service connection had not been established for any disability. While a complete set of the Veteran’s service treatment records have not been obtained, the Board observes that neither the appellant nor her representative argue that the Veteran experienced any lung related symptoms during his active duty service. Similarly, the appellant does not allege and there is no competent medical evidence that the late Veteran developed any lung symptoms within a year of his separation from active duty service. As noted above, the VA was unable to obtain private medical records and the appellant did not submit any medical records. The VA attempted to obtain a medical opinion in December 2012 with the available evidence. The Federal Circuit has held that section 38 U.S.C. § 5103A(a), rather than § 5103(d), applies to DIC claims. Section 5103A(a) directs that VA need obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). In Wood v. Peake, the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. § 5103A(a) "only excuses the VA from making reasonable efforts to provide [a medical opinion], if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" 520 F.3d 1345, 1348 (Fed. Cir. 2008) (citing 38 U.S.C. § 5103A (a)(2)). Here, in response to the request the VA doctor indicated that they could not render an opinion without reviewing any medical records. At a minimum, medical records from the last two years of the Veteran’s life were necessary for him to render an opinion. In light of this statement by the VA doctor, the Board finds that no reasonable possibility exists that a remand for a competent medical opinion would aid in substantiating the claim. While the record indicates that the Veteran did serve aboard a ship while in the Navy, his available records show that the Veteran’s military occupational specialty (MOS) was as able seaman, which is associated with minimal exposure to asbestos. There is no presumption that a Veteran was exposed to asbestos in service by reason of having been aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. The Board also notes the Veteran’s post-service occupation of seaman for forty-two years and post-service asbestos exposure as noted in his death certificate. In this regard, the death certificate reflects, under box #34 (describe how injury occurred), an industrial accident (exposure of asbestosis). In addition, the Board has considered the appellant’s lay statements regarding her belief that the Veteran’s mesothelioma was caused by his exposure to asbestos while serving aboard a ship in the Merchant Marines. She indicated that she became aware of the Veteran’s exposure to asbestos when they learned he had mesothelioma in 1982. The Board notes that lay persons such as the appellant are competent to provide opinions on some medical issues. However, in this case, the question of whether the Veteran had bronchopneumonia and mesothelioma of the lungs that is related to his active service falls outside the realm of common knowledge of a lay person as it involves knowledge of the body’s complicate respiratory system. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the intricacies in diagnosing and determining the etiology of bronchopneumonia and mesothelioma of the lungs and the effects of asbestos exposure are issues that require the expertise of a medical professional and knowledge. Therefore, the appellant is not competent to provide an opinion and the Board finds that her opinion is entitled to no weight on this matter. In conclusion, and upon consideration of the entire record, the Board finds that the preponderance of the competent and credible evidence is against a finding that a disability incurred in, or aggravated by, military service caused or contributed to the Veteran’s death. The Board emphasizes that it is sympathetic to this appellant and is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the evidence is against the appellant’s claim, there is no reasonable doubt to resolve in her favor. Therefore, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel