Citation Nr: 21025881 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-37 245 DATE: April 29, 2021 ORDER Entitlement to dependency and indemnity compensation based upon service connection for the cause of the Veteran’s death is denied. INTRODUCTION The Veteran served on active duty from April 1949 to July 1958. He died in July 2010, and the Appellant is his surviving spouse. In February 2017, the Appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. FINDING OF FACT Neither the Veteran’s conceded exposure to asbestos in service, nor a service-connected disability contributed substantially or materially to his death. CONCLUSION OF LAW The criteria have not been met for entitlement to dependency and indemnity compensation. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for death and indemnity compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103 (a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The Appellant was provided all required VCAA notice in a June 2013 letter, prior to the September 2013 rating decision on appeal. This notice informed her of the respective responsibilities of the claimant and VA, actions taken on her behalf, and the information or evidence necessary to establish the cause of death claim. The Board also finds VA has complied with its duty to assist the Appellant in the development of her claim. The Veteran’s service treatment records (STRs) are unavailable. Though the RO has requested his records from several sources, each of these facilities has determined the Veteran’s records could not be located. By way of December 2013 correspondence, the National Personnel Records Center determined the Veteran’s records were likely burned in the July 1973 fire. The Appellant was informed of the unavailability of the Veteran’s STRs in an August 2013 letter. It is clear that further efforts to obtain the STRs would be futile. Moreover, the Board finds the Veteran’s missing STRs do not harm the Appellant’s claim, because the Veteran’s reports of in-service exposure to asbestos have been conceded. All available post-service medical evidence identified by the Appellant have been obtained. The Appellant was also afforded a hearing before the undersigned Veterans Law Judge in February 2017. Finally, the Board also acknowledges that a comprehensive VA independent medical opinion was obtained from a Pulmonary specialist at the Cincinnati VAMC in response to the claim in November 2018. Thereafter, two additional medical opinions were obtained from an independent medical doctor in December 2020. Accordingly, the Board will address the merits of the claim. Relevant Legal Criteria Dependency and indemnity compensation benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). Service connection may be granted for any disease initially 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). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Appellant initiated a claim for entitlement to DIC benefits based on service connection for the cause of the Veteran’s death in June 2013. Prior to his death the Veteran was not service connected for any disabilities, and as such, the central issue in this case is whether a service related condition—which was not service connected prior to his death—was nonetheless the principle or contributory cause of his death. The Veteran died in July 2010. His death certificate shows the Veteran’s death was due to end stage COPD. The evidence of record also indicates the Veteran served as an Aircraft Armament and Electronics Specialist in the U.S. Air Force from April 1949 to July 1958, and in a May 2002 memorandum, VA determined this occupation had a high probability for exposure to asbestos. A review of his VA outpatient treatment records and private clinical notes shows the Veteran was noted to have pleural calcifications and increased interstitial markings on radiographic findings. As such, VA has conceded the Veteran’s exposure to asbestos during his period of military service. However, the mere exposure to asbestos in service does not constitute a disability such as asbestosis in and of itself. In August 2018, the Board initiated development to obtain a comprehensive medical opinion from a Pulmonologist, to determine whether the Veteran’s death could have resulted from his exposure to asbestos in service. In November 2018, the Board obtained a medical opinion from a Pulmonary specialist at the Cincinnati VAMC. The physician carefully reviewed the Veteran’s entire medical history, paying close attention to the treatment notes just prior to the Veteran’s death. The physician noted the Veteran’s death report indicated the cause of death was COPD; however, the physician found insufficient medical evidence to establish a diagnosis of COPD. Here, the physician indicated a diagnosis of COPD requires spirometry and/or pulmonary function testing, in the setting of symptoms such as dyspnea, chronic cough, or sputum production. The physician explained that no pulmonary function tests were available, and none of the chest x-rays taken mention findings consistent with COPD. Most importantly, however, the physician also found insufficient evidence to conclude the Veteran’s in-service asbestos exposure led to significant pulmonary impairment. As such, the examiner concluded the Veteran’s asbestos exposure was less likely as not a causative agent in his demise. However, the physician did not specifically consider and expressly discuss a July 2007 medical record showing a diagnosis of “chronic obstructive pulmonary disease exacerbation” or a November 2009 medical record noting a past medical history of COPD, as well as an assessment of “acute exacerbation of chronic obstructive pulmonary disease and sepsis.” As such, the Board requested a second medical opinion in this matter in an August 2020 remand. In December 2020 and February 2021 statements, an independent private physician concurred with the November 2018 Pulmonologist’s findings. Specifically, the physician reviewed the above-noted July 2007 and November 2009 treatment notes but determined these records did not provide an objective diagnosis of COPD. In sum, the physician stated the diagnosis was “not accurate,” as determined by both the November 2018 Pulmonologist and himself. Again, more importantly, the physician also concurred with the November 2018 Pulmonologist’s conclusion that there was insufficient evidence to show the Veteran’s conceded asbestos exposure led to actual pulmonary impairment. Here, the physician explained that pleural plaques are deposits of hyalinized collagen fibers in the parietal pleura. Though they are indicative of asbestos exposure, they are not asbestosis. Rather, the examiner explained that pleural plaques in and of themselves are generally benign incidental findings. As noted above, the November 2018 Pulmonologist previously found no evidence to indicate these benign isolated pleural plaques led to any actual pulmonary impairment. Upon careful and compassionate review of the evidence of record, the Board finds the Appellant is not entitled to service connection for the cause of the Veteran’s death. In this respect, the Board concludes there is insufficient evidence to establish the Veteran’s death was principally or contributorily caused by a disability that originated during his period of active duty was otherwise connected to his active service. There is simply no medical evidence showing a causal connection between the Veteran’s death and his active service. With respect to whether the Appellant’s own statements can establish that the Veteran’s death was caused by any event or disability incurred in service, the Board notes that VA must consider all favorable lay evidence of record. 38 C.F.R. § 5107 (b); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, in addition to the medical evidence, the Board has carefully considered the Appellant’s own lay statements. However, the Board notes that during her February 2017 Board hearing, the Appellant offered little explanation as to how the Veteran’s death resulted from his active service. Further, as a lay person the Board finds the Appellant is not competent to state whether the Veteran’s asbestos exposure in service contributed to his death, because this determination requires specialized education, training, or experience. See 38 C.F.R. § 3.159 (a)(1). The Board has considered whether there is any other appropriate basis to grant this claim but has found none. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran’s death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.