Citation Nr: 20002007 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-16 842 DATE: January 9, 2020 ORDER Entitlement to service connection for the Veteran's cause of death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during active duty. 2. The evidence is in relative equipoise as to whether in-service asbestos exposure contributed to the Veteran’s cause of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran's cause of death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5103A, 5107; 38 C.F.R. §§ 3.310, 3.312. 2. The claim for Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1958 to April 1960. The Veteran died in April 2014. The appellant is the Veteran’s surviving spouse. 1. Entitlement to service connection for the Veteran's cause of death DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a) (1). A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). Service-connected disability will be considered as the principal (primary) cause of death when such disability, singly 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 inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; 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 causally shared in producing death, but 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). The Veteran’s death certificate lists respiratory failure; and lung cancer with metastasis to bone, liver, and spleen as the causes of the Veteran’s death. At the Veteran’s time of death, he was not service-connected for any disabilities. The Appellant contends the Veteran’s lung cancer was caused by asbestos exposure during active duty. The Veteran’s MOS was listed as bridge helper and pioneer. In May 2014, the Dr. R.D.W provided a positive nexus opinion. He opined the Veteran’s lung cancer was at least as likely as not caused by asbestos exposure in-service. The examiner found the Veteran did not have other risk factors, to include tobacco use. The examiner explained that, although the Veteran smoked until 1992, after five years of non-smoking, the risk of lung cancer returns to normal. In a December 2016 deferred rating, the decision review officer noted that the Veteran had probable asbestos exposure due to his MOS, according to VA policy. A VA opinion was obtained in February 2017. The examiner provided a negative nexus opinion, finding asbestos exposure could not be confirmed. The Veteran provided lay statements of asbestos exposure, and the Veteran’s MOS is probable for asbestos exposure. Therefore, viewing the evidence in a light most favorable to the appellant, and affording the appellant the benefit of the doubt, the Board finds that the Veteran was exposed to asbestos during active duty service. Given the conflicting opinions regarding the etiology of the Veteran’s lung cancer, each supported by a rationale, the Board also finds that the evidence is in relative equipoise as to the question of whether the Veteran’s immediate cause of death was caused by in-service asbestos exposure. 38 C.F.R. § 3.312(a). Resolving all doubt in the appellant’s favor, the Board concludes that asbestos exposure did indeed contribute to cause the Veteran’s death, and the claim is thus granted in full. 38 U.S.C. § 5107. 2. Entitlement to DIC under 38 U.S.C. § 1318 The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318. In pertinent part, 38 U.S.C. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran’s death was not service-connected. These benefits are payable under certain circumstances if the veteran was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C. § 1318 are paid in the same manner as if the veteran’s death were service-connected. 38 U.S.C. § 1318(a). As service connection for the cause of the Veteran’s death has been granted, the alternative claim under Section 1318 is rendered moot. Section 1318 provides an alternate basis for an award of dependency and indemnity compensation and does not provide any additional benefit for the appellant. As the benefit sought has already been awarded, no further analysis of the claim is required. Only if an appellant’s claim for service connection for the cause of the Veteran’s death is denied under 38 U.S.C. § 1310, does VA have to also consider an appellant’s DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the Veteran’s death under 38 U.S.C. § 1310, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and the claim is dismissed. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.