Citation Nr: 21014574 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-10 461A DATE: March 15, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. At the time of his death, the Veteran did not have any service-connected disabilities. 2. The Veteran died September [REDACTED], 2012; the death certificate reflected that the immediate cause of death was respiratory failure. 3. The Veteran is presumed to have been exposed to asbestos during service. 4. The most probative evidence of record demonstrated that the Veteran’s chronic obstructive pulmonary disease (COPD) was due to asbestos exposure during active service. 5. Prior to his death, the Veteran required supplemental oxygen to breathe due to his COPD. 6. The Veteran’s COPD was a contributory cause of death. 7. COPD materially affected a vital organ to a level where debilitation may be assumed. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R.§§3.303, 3.304, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably from March 1952 to October 1961. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran died in September 2012. The appellant is the Veteran’s surviving spouse. In September 2018 the appellant presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). In a September 2019 decision, the Board denied the issue on appeal. The appellant appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court vacated the prior board decision and remanded the issue for further proceedings consistent with the decision. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2020). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the appellant with her claim decided herein are moot. Cause of Death In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disability was incurred in or aggravated by active service; and was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or must be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The standards and criteria for determining whether or not a disability from which a Veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the Veteran is still alive. 38 U.S.C. § 1310. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 casually shared in producing death, but rather it must be shown that there was a causal connection. See 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. See 38 C.F.R. § 3.312 (c)(3). The appellant alleges that the Veteran’s COPD was related to asbestos exposure in-service and that caused the Veteran’s respiratory failure. During the September 2018 Board hearing, the appellant explained that ten years after service the Veteran began to have pneumonia and suffered with lung problems since that time. First, the Board finds that there was a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A January 2012 private treatment record showed a diagnosis for oxygen dependent COPD. Accordingly, the first element is met. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s DD214 list his military occupational specialty (MOS) ship and boat electrician, which is probable for asbestos exposure. The Veteran’s DD214’s confirm service aboard several ships. Accordingly, the second element of service connection has been met. Third, the Board finds that the most probative evidence of record does support a finding that the COPD is related to asbestos exposure during active service. A November 2012 death certificate showed the Veteran died on September [REDACTED], 2012 with immediate cause of death as respiratory failure. The Veteran’s private pulmonary doctor submitted a January 2014 opinion. The private provider explained the Veteran was under their care from 2007 until he passed away from COPD. The private provider stated the Veteran’s service in the navy could have exposed him to asbestos leading to COPD and scarring of the lungs. The private provider noted the Veteran worked in various engine rooms as a welder and electrician. The provider noted he was recently made aware of the Veteran’s naval service. The provider opined that they could say with 90 percent certainty the Veteran’s COPD was related to asbestos exposure in-service. An October 2014 opinion was provided by a VA examiner. The examiner opined it was less likely than not COPD was related to service. The examiner stated the Veteran had a long history of COPD and noted the Veteran smoked one pack per day for 60 years based on a September 2006 VA treatment record. The examiner conceded the Veteran’s MOS is considered probable for asbestos exposure. The examiner stated the Veteran’s chest x-ray showed nonspecific lower lobe plural parenchymal abnormality. The chest x-ray did not show any specific asbestosis change of plural calcification. The Board notes the examiner did not cite a specific chest x-ray as the Veteran had several. The examiner recited the private opinion. The examiner noted the private provider failed to comment on the Veteran’s history of smoking which is well known to be a major risk factor in the development of COPD. The examiner stated in an October 2005 application the Veteran identified his occupation as a welder and heavy machine operator. The examiner explained that welding increases the risk of developing pulmonary disease. The examiner pointed out the Veteran was a welder before service and during active duty. The examiner opined it was less likely than not the Veteran’s probable exposure to asbestos caused his severe COPD that caused his death. The examiner opined it was more likely than not the overwhelming amount of COPD was related to tobacco smoking. The examiner opined it was just as likely as not that a minimal degree of COPD was related to probable asbestos exposure while on active duty. The examiner concluded that would not have been sufficient to have caused the Veteran’s death from respiratory failure 50 years after separation. The Board affords significant probative weight to the January 2014 private opinion as it was based upon treatment of the Veteran, an examination of the Veteran, knowledge of the relevant facts, and an adequate supporting explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). First, the private provider was aware of the Veteran’s smoking history. During the September 2018 Board hearing the appellant stated the private provider was aware of the smoking history but not the asbestos exposure. These statements are supported by private treatment records. A February 2008 private treatment record, signed by the provider who rendered the January 2014 opinion, noted a history of tobacco use. Second, the January 2014 opinion noted the provider was board certified in pulmonary disease. The private provider’s specialty in the area warranted affording their opinion more weight than the VA examiner. Lastly, the private provider treated the Veteran for several years. The October 2014 VA examiner never examined the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). The Board affords the October 2014 VA opinion low probative weight. First, the opinion puts the issue in equipoise. The examiner opined, in pertinent part, it was just as likely as not that a minimal degree of COPD was related to probable asbestos exposure while on active duty. Which is not the same as “more likely than not.” The examiner concluding statement contradicts the opinion given at the outset. Second, the examiner noted the Veteran was a welder during service and prior to service. The examiner does not differentiate when the increased risk of COPD could have occurred. Third, the examiner misrepresents the Veteran’s smoking. The examiner cited a September 2006 VA treatment record that noted the Veteran smoked a pack of day for 60 years. However, there is some indication in the record the Veteran stopped smoking and began smoking again. An April 1988 VA treatment record, which was not addressed by the examiner, identified the Veteran as a “former smoker.” Fourth, the examiner mentions one x-ray that showed nonspecific lower lobe plural parenchymal abnormality. The examiner did not identify which chest x-ray. The examiners statement makes it appear there was only one x-ray with scarring related to asbestos exposure. By contrast several x-rays noted the following: November 2007- pleural tag associated with pulmonary nodule; August 2008- atelectasis in both lungs; April 2009- chronic pleuro parenchymal changes; June 2011- subsegmental atelectasis or scarring; and June 2012- suspect lung base fibrosis. None of the findings were mentioned by the VA examiner. Lastly, the examiner noted a 50-year gap from probable exposure to death. However, this supports the finding versus weighs against the finding as asbestos exposure is well known to have a long latency period. Thus, the Board finds the January 2014 highly probative when coupled with the other findings in the record. Accordingly, the last element of service connection has been met and service connection is warranted for COPD related to asbestos exposure in-service. Lastly, the Board finds COPD was a contributory cause of death that materially affected lung function. See 38 C.F.R. § 3.312(c). The Veteran’s cause of death is listed as respiratory failure. As discussed above, service connection is warranted for COPD. Under 38 C.F.R. § 4.97 Diagnostic Code (DC) 6604, COPD is evaluated at 100 percent when it requires outpatient oxygen therapy. An April 2012 VA treatment record confirmed the Veteran required continuous oxygen to treat his COPD. Because the Veteran’s COPD affected a vital organ, and he could have been evaluated at 100 percent, debilitation is assumed, and COPD was a contributing cause of death. See 38 C.F.R. § 3.312(c). Accordingly, service connection for the Veteran’s cause of death is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.