Citation Nr: 21069711 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-24 650 DATE: November 19, 2021 ORDER Entitlement to accrued benefits based on a pending claim for entitlement to service connection for Parkinson's disease is dismissed. Entitlement to accrued benefits based on a pending claim for entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), asbestosis, and fungal pneumonia, is dismissed. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. At the May 2021 Board hearing, the appellant withdrew the appeal of the issues of entitlement to service connection for Parkinson's disease and entitlement to service connection for a lung disability for accrued benefits purposes. 2. The Veteran died in June 2016. The causes of his death were respiratory failure, malignant mesothelioma, and COPD. A significant condition contributing to death was coronary artery disease. 3. The evidence is in equipoise as to whether the Veteran's malignant mesothelioma was caused by asbestos exposure during active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to service connection for Parkinson's disease and entitlement to service connection for a lung disability for accrued benefits purposes by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1949 to April 1953. He died in June 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied entitlement to service connection for Parkinson's disease and a lung disability for accrued benefits purposes and denied entitlement to service connection for the cause of the Veteran's death. In May 2021, the appellant testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to accrued benefits based on a pending claim for entitlement to service connection for Parkinson's disease is dismissed. 2. Entitlement to accrued benefits based on a pending claim for entitlement to service connection for a lung disability, to include COPD, asbestosis, and fungal pneumonia, is dismissed. Under applicable criteria, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a). At the May 2021 Board hearing, the appellant, with the assistance of her attorney, expressed her desire to withdraw the pending appeal of the issues of entitlement to service connection for Parkinson's disease and entitlement to service connection for a lung disability for accrued benefits purposes. As reflected in the hearing transcript, the withdrawal was explicit and unambiguous. Moreover, the undersigned explained the consequences of the withdrawal and the appellant indicated that she fully understood the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, no allegations of errors of fact or law remain for appellate consideration with respect to said claims. Accordingly, the Board does not have jurisdiction to review the appeal as to these matters, and they must be dismissed. 3. Entitlement to service connection for the cause of the Veteran's death is granted. Dependency and indemnity compensation (DIC) is awarded to a veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 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 not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). In addition, certain chronic diseases, including malignant tumors, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant contends that the Veteran's fatal malignant mesothelioma was the result of asbestos exposure during active duty. The Veteran's death certificate states that the causes of his death were respiratory failure, malignant mesothelioma, and COPD. A significant condition contributing to death, but not resulting in the underlying cause, was coronary artery disease. Service treatment records (STRs) are negative for pertinent complaints or abnormalities. In May 2016, prior to his death, the Veteran submitted a statement indicating that he had been exposed to asbestos while aboard the USS Wright. Additionally, he indicated that while he was stationed at the Naval Station in Norfolk, Virginia, he worked on the heating, air conditioning, and insulation, which was subsequently removed in 1959. See May 2016 VA Form 21-4138 Statement in Support of Claim. An August 2016 autopsy report, inter alia, indicated a final anatomic diagnosis of malignant pleural mesothelioma, epithelioid type, bilateral, severe. See August 2016 Autopsy Report received in August 2017. A VA medical opinion was obtained in July 2017. Following review of the claims file, the examiner concluded that it was less likely than not that the Veteran's exposure to asbestos during active duty contributed to his death. The examiner opined in pertinent part, My medical opinion is based upon the review of the C-file in VBMS/VVA, to include the above noted medical records, medical records in Capri, the Veteran's MOS, Airman in Navy, minimal for asbestos exposure, the death certificate which noted that the Veteran was 84 yo [years old] at time of death, 6/4/2016 as to the date of death, the 6/6/2016 autopsy report which noted anatomic diagnoses to include "Malignant pleural mesothelioma, epithelioid type, bilateral, severe," clinically, mesothelioma most likely occurs between 20 and 50 years after the initial exposure to asbestos, and the fact that the medical records reviewed showed no evidence of a diagnosis of mesothelioma until many years, more than 60 years after military discharge, and not during the above noted latency period. At the May 2021 Board hearing, noted above, the appellant testified that during the Veteran's lifetime, he indicated that he had been exposed to asbestos during service aboard Navy ships, as well as in his plane. Additionally, she testified that the Veteran stated that asbestos was over his bunk. See May 2021 Transcript of Hearing, pages 3-4. In May 2021, a private physician, Dr. W.F., provided a positive etiological opinion regarding the Veteran's malignant mesothelioma. Following review of the claims file and medical literature, Dr. W.F. opined in pertinent part, The medical research and other evidence reviewed shows that the latency period from asbestos exposure to the diagnosis of malignant mesothelioma can be greater than 50 years as the VA Examiner noted in his opinion. This latency period can be more than 70 years. As such, based on the veteran's asbestos exposure in-service and his ultimate diagnosis of malignant mesothelioma in his autopsy report, it is my professional medical opinion that it is at least as likely as not that the veteran's malignant mesothelioma which was a primary cause of the veteran's death was caused by his asbestos exposure while in-service. After a review of the evidence, the Board finds that service connection for the cause of the Veteran's death is warranted. In that regard, the Board assigns high probative value to the May 2021 positive nexus opinion indicating that the Veteran's malignant mesothelioma was at least as likely as not a result of his in-service asbestos exposure, as the opinion was based on a thorough review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale. The Board also assigns high probative value to the appellant's hearing testimony regarding the Veteran's exposure to asbestos during active duty. Having had the opportunity to observe her demeanor at the hearing, the Board finds her testimony to be credible. The Board assigns less probative weight to the July 2017 VA medical opinion, as the opinion appears to be simply based on the fact that the Veteran's malignant mesothelioma developed outside of the latency period cited by the examiner, namely between 20 and 50 years. However, the examiner failed to consider other medical literature indicating that the latency period from asbestos exposure to the diagnosis of malignant mesothelioma can be more than 70 years. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his or her favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to service connection for the cause of the Veteran's death. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.