Citation Nr: 20044033 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 09-29 653 DATE: June 30, 2020 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in November 2002; the immediate cause of death was adenocarcinoma of the lung. 2. Resolving all reasonable doubt in favor of the Appellant, the Veteran’s adenocarcinoma of the lung was due to asbestos exposure during service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1965 to March 1994. The Veteran died in November 2002. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Appellant testified at a travel Board hearing in February 2011 before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing is of record. In January 2018, the Board sent the Appellant a letter presenting her with an opportunity for another hearing. The Appellant has not requested another Board hearing. In a September 2011 decision, the Board granted an application to reopen the claim for service connection for the cause of the Veteran’s death and denied the underlying claim. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 memorandum decision, the Court vacated the Board’s decision and remanded the claim for further development. The Board subsequently remanded the claim for further development in October 2013, March 2016, and May 2018. That development has been completed, and the case is now before the Board for appellate consideration. Service connection for cause of death Dependency and indemnity compensation (DIC) is 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. 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 may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). 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). The Veteran’s death certificate lists his cause of death as adenocarcinoma of the lung. The Appellant contends that the Veteran’s adenocarcinoma of the lung was caused by in-service exposure to herbicide agents or other toxins in Guam, Subic Bay, or Fort McClellan; alternatively, she contends that the Veteran was exposed to asbestos while serving on naval ships. After resolving any reasonable doubt in the Appellant’s favor, the Board concludes that it is at least as likely as not that the Veteran’s adenocarcinoma of the lung is related to in-service exposure to asbestos. At the February 2011 Board hearing, the Appellant testified that the Veteran told her he was exposed to asbestos during service. She contends that the Veteran was exposed to asbestos during his service on destroyer tenders, including the USS Grand Canyon, USS Arcadia, and USS Yosemite, as well as service on other ships such as aircraft carriers and destroyers where he was part of damage control teams. See May 2020 Correspondence. The Appellant submitted evidence explaining that destroyer tenders are floating repair facilities with machine shops, woodworking shops, welding facilities, and electrical repair units. See January 2018 Medical Opinion. Additionally, the Appellant submitted evidence explaining that damage control teams were responsible for various repairs on ships. Id. The Veteran’s military personnel records show that he served on numerous naval vessels and shore facilities. The Veteran was assigned several military occupational specialties throughout his service, including ship serviceman, ships store operator, stock clerk, general damage control, maintenance man, and barber, which all had minimal probability of asbestos exposure. However, the Veteran’s STRs show that he was potentially exposed to hazards, including asbestos, for at least three months when he removed lagging in laundry following fires and reinsulated the area. Furthermore, the Veteran’s military personnel records show that he was involved in various renovation projects during his service. The Board notes that in 1989, the Veteran denied having any asbestos exposure. However, based on the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that exposure to asbestos is consistent with the place, type, and circumstances of his active service. 38 U.S.C. § 1154(a). The Appellant submitted a private medical opinion in January 2018 from a board certified and residency trained occupational and environmental physician. After reviewing the Veteran’s claims file, the physician opined that it is at least as likely as not that the Veteran’s death from adenocarcinoma of the lung was due to in-service asbestos exposure. In support of her conclusion, and in consideration of the Veteran’s smoking history, the physician cited to various medical studies and stated that both asbestos exposure and smoking increased the Veteran’s risk of developing lung cancer. She further stated the Veteran’s risk for developing cancer was higher for having both risk factors. Therefore, she concluded that the Veteran’s lung cancer is at least as likely as not related to in-service asbestos exposure. Accordingly, resolving all reasonable doubt in the Appellant’s favor, the Board finds that the criteria for service connection for adenocarcinoma of the lung as due to in-service exposure to asbestos have been met and the appeal for service connection for the cause of the Veteran’s death is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that as service connection for the cause of the Veteran’s death has been granted based on in-service asbestos exposure, there is no need to further address the Appellant’s contentions regarding his potential exposure to herbicide agents or other chemicals while in service. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.