Citation Nr: 21030424 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-57 963 DATE: May 18, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the Veteran's cause of death is denied. FINDING OF FACT Though the Veteran was exposed to asbestos during his active service, the most probative evidence of record does not reflect that this exposure led to the Veteran's death, or that any other service-connected disability contributed to the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1954 through November 1957. The Veteran died in May 2016. The appellant in the present appeal is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in December 2019 and was remanded for further development. Specifically, the Board ordered that the RO determine whether the Veteran was exposed to asbestos during his active service, to obtain private treatment records, and to obtain an opinion regarding the Veteran's death. Each of those steps having been accomplished, the Board finds substantial compliance with its remand instructions. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In determining whether a service-connected disability contributed substantially or materially to death, the evidence must show that it combined to cause death or 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. 38 C.F.R. § 3.312 (c)(1); see also, Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disorder; (2) an in-service incurrence or aggravation of a disease or injury; and, (3) a nexus between the claimed in-service disease or injury and the present disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). During his lifetime, the Veteran was not service connected for any disabilities. Instead, the appellant contends that the Veteran was exposed to asbestos in service due to his military occupational specialty (MOS) of seaman apprentice and gunner's mate. The Veteran was diagnosed with COPD, pulmonary fibrosis, and epilepsy. The appellant contends the Veteran's asbestos exposure in-service resulted in his pulmonary fibrosis, which the appellant contends was a contributing factor to her husband's death. The question for the Board is thus whether the Veteran's respiratory disorder should be considered service-connected, and if so, whether it then led to his death. First, the Veteran was diagnosed with COPD with pulmonary fibrosis. The first element of service connection is met. Development ordered by the Board in its previous remand revealed that the Veteran's MOS was reported to have minimal exposure to asbestos. Such evidence of minimal exposure is sufficient to conclude that the second element of service connection has been met. The issue remaining is whether there is a causal connection between the Veteran's respiratory disorder and his service. The appellant submitted an amended death certificate. The original death certificate reflects the Veteran died in May 2016 and the underlying cause of death was listed as COPD. The Appellant obtained an amended death certificate based on information provided by the Veteran's pulmonologist. The amended death certificate shows the cause of death as COPD due to asbestosis. The Appellant contends the Veteran's pulmonary fibrosis was a result of his asbestos exposure (and should be considered asbestosis), and that it was a contributing factor to the Veteran's death. The Veteran's private pulmonologist provided a medical opinion that stated the Veteran was an active patient of his practice. The private pulmonologist reported the Veteran had lung restriction and could have had components of asbestosis, but it was likely all COPD. The private opinion further concluded the pulmonologist suspected the Veteran's asbestos exposure led to his chronic lung disease. A VA medical opinion was obtained in July 2020. The VA examiner concluded the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner concluded it was unclear why the Veteran's death certificate stated the cause of death was COPD due to asbestosis. The VA examiner stated asbestosis does not cause COPD and concluded the record does not show the Veteran had a diagnosis of asbestosis; the VA examiner also reported asbestos exposure does not always result in asbestosis or any other respiratory disability. The examiner concluded the Veteran had minimal, if any, exposure to asbestos in-service. The examiner concluded the record shows the Veteran had progressive COPD prior to any fibrosis changes, thus establishing COPD, caused by tobacco cigarette smoking, as the Veteran's primary respiratory disability and unrelated to his service decades prior. The VA examiner stated the Veteran developed moderately severe COPD as early as 1982 and the Veteran had an extensive smoking history. The VA examiner stated the Veteran exhibited fibrotic changes of the lungs after COPD developed, at least by 2011 and his lung disability is most consistent with COPD. The VA examiner reported the Veteran did not exhibit pleural plaques or isolated interstitial lung change as would be expected in asbestosis. The VA examiner concluded the asbestos exposure does not cause COPD and the Veteran's COPD pre-disposed the Veteran to development of fibrosis, it is most likely the Veteran's primary respiratory disorder was COPD, unrelated to asbestos exposure and unrelated to his service. The private opinion and VA opinion provide opposing conclusions. As noted above, the private pulmonologist who treated the Veteran stated the Veteran's exposure to asbestos led to his chronic lung disease, noting he had restriction and a component of asbestosis. The VA opinion provided the opposite opinion, stating asbestos exposure did not cause COPD and the Veteran's COPD is what caused the development of fibrosis in the Veteran. Here, the Board finds that the VA opinion is entitled to greater probative value than the private opinion. First, the VA opinion is adequate, as it was based on a complete review of the Veteran's claims file (including his extensive private and VA treatment records), it responded directly to the questions posed by the Board, and it contained a well-supported rationale. Those same factors also make the VA opinion probative evidence against the appellant's claim. The VA examiner specifically addressed the contentions of the appellant, but she found no evidence that the Veteran's asbestos exposure led to his COPD or to his pulmonary fibrosis. The VA examiner provided a clear alternate theory regarding the Veteran's death, namely that his 40-year history of smoking led to COPD and pulmonary fibrosis. She cited to specific evidence underlying this conclusion, as well as to her conclusion that the Veteran did not display any symptoms consistent with asbestosis or an asbestos related respiratory disorder. The private opinion, on the other hand, is equivocal. Indeed, though it stated that the Veteran could have asbestosis, it provided no foundation for this finding, and then stated that COPD was the Veteran's primary disability. In contrast to the VA opinion, the private opinion did not address whether pulmonary fibrosis was the result of the Veteran's asbestos exposure or whether it was related to his COPD. This opinion is also drafted by hand and unsigned, so it is unclear from whom it came. Further, e-mails among the Veteran's private doctors show that they did not find evidence that he was diagnosed with asbestosis prior to his death. These e-mails were written in response to the appellant's request that asbestosis be added to the Veteran's death certificate; in the end, it appears that the ultimate request for amendment was made by the Veteran's hospice doctor, but again, there is no foundation for the conclusion that the Veteran had asbestosis. As to the death certificate itself, the original death certificate only listed COPD as the Veteran's cause of death. The amendment to add asbestosis was done at the urging of the appellant after the case here had been filed. There is an obvious motivation to add asbestosis to this certificate beyond the simple facts of the case, namely an attempt to obtain benefits. With that history in mind, and in light of the conclusion of the VA examiner and the lack of corroboration of an asbestosis diagnosis in the Veteran's treatment records, the Board does not find the amended death certificate to be credible or probative. Finally, to the extent that the appellant contends that the Veteran's death is related to service, her contention is not considered competent evidence in support of her claim. Determining the etiology of COPD and pulmonary fibrosis is complex, requiring specialized medical knowledge and training which the appellant is not shown to possess. In the end, the Board concludes that the most probative, competent evidence of record indicates that the Veteran's in-service asbestos exposure did not lead to COPD or to pulmonary fibrosis, and therefore is unrelated to his death. The weight of the evidence is against the claim, and there is no doubt to be resolved. Service connection for the cause of the Veteran's death is therefore denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.