Citation Nr: 21075975 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-55 614 DATE: December 22, 2021 ORDER Service connection for the Veteran's cause of death is granted. FINDINGS OF FACT 1. The Veteran's in-service asbestos exposure contributed to the development of medical conditions which contributed to his hypoxic respiratory failure. 2. The Veteran's hypoxic respiratory failure was a principal cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1960 to December 1964. He passed away in May 2016. The appellant is his surviving spouse. In October 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ). In April 2021, the Board remanded this appeal for further evidentiary development. Service Connection for the Cause of Death The appellant seeks service connection for the Veteran's cause of death. She asserts that the Veteran's death was related to his conceded in-service asbestos exposure. The Veteran's death certificate lists acute hypoxic respiratory failure, due to, or as a consequence of, chronic hypoxic respiratory failure, due to, or as a consequence of, chronic congestive heart failure as the causes of death. He was not service-connected for any disabilities as the time of his death. Rather, the appellant asserts that his in-service asbestos exposure led to the conditions which caused his 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(a)(1). To establish service connection for cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be decided 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. Id. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A VA opinion in this matter was obtained in May 2021. Although the VA examiner opined against service connection for the Veteran's hypoxic respiratory failure and congestive heart failure, she noted in her rationale that the Veteran had several risk factors that contributed to these conditions. Specifically, she stated that the record noted that airflow restrictions related to prior radiation for head/neck cancer was a contributing factor for the Veteran's hypoxic respiratory failure. The Veteran's VA treatment records provide further details regarding the head/neck cancer he had for which he underwent radiation therapy. Although the records relating to his 2008/2009 cancer treatment with VA are not associated with the claims file, the VA treatment records surrounding the medical care he received prior to his death in 2016 note that he had suffered from laryngeal carcinoma. In addition, these VA treatment records also assess acute hypoxic respiratory failure with an etiology of "possible HCAP + worsening pleural effusions 2/2 ADHF." VA does not have any specific policy on asbestos exposure. There is no presumptive service connection when asbestos exposure is concerned. Nevertheless, VA has acknowledged a non-exclusive list of asbestos-related diseases/abnormalities, which includes pleural effusions and cancer of the larynx. Accordingly, the Board finds that the Veteran sustained conditions related to his in service asbestos exposure (i.e., pleural effusions and cancer of the larynx), and the evidence shows an etiological relation between such conditions and his hypoxic respiratory failure, his primary cause of death. As such, service connection for the Veteran's principal cause of death is warranted under 38 C.F.R. § 3.312(b). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.