Citation Nr: 20008517 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 07-39 738 DATE: January 31, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in September 1985 and his death certificate lists the immediate cause of death as bilateral pulmonary edema and congestion, due to cardiac insufficiency, due to severe myocardial degeneration; left upper lobe adenocarcinoma and chemotherapy is listed as another significant condition which contributed to death, but did not result in the immediate cause of death. 2. The evidence is at least evenly balanced as to whether the Veteran’s left upper lobe adenocarcinoma was related to his exposure to asbestos in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the appellant, the criteria for service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107(b); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1945 to August 1946 and from November 1950 to November 1952. He died and the appellant is his surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) from a May 2006 rating decision. In December 2010, the Board granted an application to reopen the claim of service connection for the cause of the Veteran’s death and remanded the underlying claim for further development. In January 2013, the Board again remanded this matter for further development. In June 2015, the appellant requested a Board hearing before a Veterans Law Judge (see a June 2015 “Statement in Support of Claim” form (VA Form 21-4138)). She withdrew her hearing request in February 2017 (see a February 2017 “Report of General Information” form (VA Form 27-0820)). In June 2017, the Board denied the claim of service connection for the cause of the Veteran’s death. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Court set aside the Board’s June 2017 decision and remanded to the Board the issue of entitlement to service connection for the cause of the Veteran’s death for readjudication in compliance with directives specified in a March 2018 Joint Motion filed by counsel for the Veteran and VA. In November 2018, the Board remanded this matter for further development in compliance with the Joint Motion. Entitlement to service connection for the cause of the Veteran's death Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310 (a); 38 C.F.R. § 3.5 (a)(1). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310 (a). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In this case, the appellant contends that the Veteran’s cause of death was related to his exposure to asbestos in service. The Board finds, for the following reasons, that the Veteran was exposed to asbestos in service and that the evidence is at least evenly balanced as to whether his fatal left upper lobe adenocarcinoma was related to his asbestos exposure in service. The Veteran died in September 1985. His death certificate lists the immediate cause of death as bilateral pulmonary edema and congestion, due to cardiac insufficiency, due to severe myocardial degeneration. Left upper lobe adenocarcinoma and chemotherapy is listed as another significant condition which contributed to death, but did not result in the immediate cause of death. The appellant contends, among other things, that the Veteran was exposed to asbestos during service while receiving firefighter training in the Navy. The Veteran’s available service personnel records confirm that he received 9 months of training as a crash fire fighter and received training as an apprentice seaman during his service in the Navy from September 1945 to August 1946. There is otherwise nothing to explicitly contradict the appellant’s contention that the Veteran was exposed to asbestos in service and such exposure would be consistent with the evidence of record and the circumstances of his service. Therefore, in-service exposure to asbestos is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The appellant has reported that the Veteran only used tobacco for, at most, one month during his lifetime and that there were no other toxic occupational exposures following his separation from service. As for whether the Veteran’s fatal left upper lobe adenocarcinoma was related to his asbestos exposure in service, there are conflicting medical opinions. 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 appellant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In February 2011, a VA physician reviewed the Veteran’s claims file and opined that it was not likely (“less likely than not”) that his lung cancer, and the reason for his death, was caused by asbestos exposure. She explained that the Veteran died from respiratory failure, that he had been diagnosed as having poorly differentiated large cell anaplastic carcinoma of the lungs which was treated with chemotherapy, and that radiographic studies suggested evidence of persistence, and even spread, of his lung cancer. He died of respiratory failure and his autopsy revealed extension of his cancer to the thoracic vertebra, as well as encasement of the aortic arch by the cancer. There was also evidence of myocardial degeneration, pulmonary edema, and bullous emphysema of the bilateral upper lobes. There was no evidence or mention of any asbestos exposure related lung changes, such as pleural calcifications or pleural plaques. There was also no evidence of asbestosis from the available radiographic reports. The histologic report of the autopsy was not available to review in order to see if there was any mention of “asbestos bodies” which would confirm asbestos exposure. The presence of bullous emphysema of the bilateral upper lobes raised the question of smoke exposure, although there was evidence that the Veteran was not a smoker and smoked less than one month in his life. The physician also explained that the risk of lung cancer in people who have an occupational exposure to asbestos and who are non-smokers is 6 times that of the normal population. The risk is higher in patients with evidence of asbestosis, which was not the case with the Veteran. Overall, the Veteran was presumed to be minimally exposed to asbestos during service and he later died of complications of lung cancer. It was reported that he was not a smoker, however there was evidence to suggest smoke related changes in his lungs (bilateral apical bullous emphysema), either from second hand smoke or environmental exposure to smoke. There was no medical evidence that confirmed any changes in the Veteran’s lungs related to asbestos exposure. A review of the histology reports of the autopsy to look for any mention of asbestos bodies would be warranted. In an August 2014 letter, E. Graham, M.D. reported, in pertinent part, that the Veteran developed adenocarcinoma of the lung, that this condition was a significant cause of his death, and that he was possibly exposed to asbestos in service. It is a well-accepted fact in the medical community that exposure to asbestos is a risk factor to developing adenocarcinoma of the lungs. Other risk factors include secondhand cigarette smoke, age, family history, mineral and dust inhalation, radon, and cigarette smoking (the most frequent risk factor). Dr. Graham concluded that if the Veteran was exposed to asbestos, it could be a significant risk factor to him developing adenocarcinoma of the lungs. In September 2019, a VA physician reviewed the Veteran’s claims file and opined that it was likely (“at least as likely as not”) that his adenocarcinoma of the lung was the result of asbestos exposure during service and that his left upper lobe adenocarcinoma, status post chemotherapy, contributed significantly to his death. The physician reasoned, in pertinent part, that asbestos is a known carcinogen producing lung cancer and that if the Veteran was exposed to asbestos in service, it was likely a major cause of his lung cancer. Although he was briefly a smoker during that time, the period of latency for lung cancer from such exposure drops off after 20 years, whereas the latency for lung cancer from asbestos continues beyond 30 years and is more consistent with the arrival of the Veteran’s cancer diagnosis being caused by asbestos exposure. This cancer risk does not require the presence of asbestosis lung disease to manifest. The Veteran’s adenocarcinoma of the left upper lobe was consistent as having resulted from an asbestos exposure during military service. The physician further explained that a review of the Veteran’s death certificate and medical records dated in September 1985 revealed that although the immediate cause of his death was pulmonary edema, a major contributing factor was his metastatic adenocarcinoma, status post chemotherapy. Since the cancer did not respond to chemotherapy and exhibited such a degree of advancement, his eventual death from complications seemed likely. In addition, the pulmonary effects from the lung cancer and residual effects from the chemotherapy were most likely the major factor in precipitating his death, which involved multiple organ failure leading to respiratory failure and death. The February 2011 and September 2019 opinions are both based upon a review of the Veteran’s records and reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Thus, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although Dr. Graham’s August 2014 opinion is of somewhat limited probative value because it is equivocal, it at least supports the conclusion that the Veteran’s fatal lung cancer was caused by his asbestos exposure in service. In light of the above opinions, the Board finds that the Veteran had left upper lobe adenocarcinoma which contributed to his death, that he was exposed to asbestos in service, and that the evidence is at least evenly balanced as to whether the Veteran’s fatal left upper lobe adenocarcinoma was caused by his exposure to asbestos in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for the cause of the Veteran’s death is warranted. Kalisse Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.