Citation Nr: 21040632 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-58 523A DATE: July 6, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for peritoneal mesothelioma for accrued benefits purposes is denied. Entitlement to special monthly compensation (SMC) based upon housebound status for accrued benefits purposes is denied. FINDINGS OF FACT 1. The Veteran's cause of death was peritoneal mesothelioma. 2. The probative medical evidence of record shows that the Veteran's peritoneal mesothelioma was more likely caused by prolonged exposure to asbestos while working as a line splicer for a telephone company than his 4 years working as a machine repairman in the Navy. 3. The Veteran was rendered housebound by his peritoneal mesothelioma, a non service-connected disability. CONCLUSIONS OF LAW 1. A service-connected disability did not contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2019). 2. The criteria for establishing service connection for peritoneal mesothelioma are not met. 38 U.S.C. §§ 1110, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). 3. The criteria for SMC housebound have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1965 to September 1969. The Veteran died March 1, 2013. The appellant is the Veteran's spouse and has brought claims for cause of death as well as continuing accrued claims for service connection for peritoneal mesothelioma and SMC housebound. The appellant testified before the undersigned Veterans Law Judge at a Board hearing in April 2021. A copy of the transcript is of record and has been reviewed accordingly. Cause of Death and Service Connection To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 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 appellant contends that the Veteran's official cause of death as listed on the death certificate, peritoneal mesothelioma, was caused by or incurred in military service and should, therefore, be considered service-connected. During the Veteran's lifetime, service connection was in effect for residual facial scars due to basal, and squamous cell carcinomas evaluated as 10 percent disabling; and residual scars of trunk and arms due to malignant melanoma and basal and squamous cell carcinomas, evaluated as non-compensably disabling. The appellant has not alleged, and the evidence does not suggest that the scars were contributory in any way to the Veteran's death. Therefore, the scope of the inquiry shall be limited to whether the Veteran's official cause of death, peritoneal mesothelioma, which is not in dispute, should be service connected. For clarity, a common discussion of the cause of death and service connection claims shall ensue due to the nature of overlap. The Veteran's DD 214 shows that he was a Navy machinery repairman, which a memorandum in the file shows to have been a profession with minimal exposure to asbestos. He also had duties as a Fireman, which the memorandum shows as duty highly probable for asbestos exposure. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110 (2012). There is a presumption of service connection for malignant tumors, if shown to a degree of 10 percent within one year of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, a review of the medical evidence of record does not show that the Veteran developed peritoneal mesothelioma or symptoms thereof during his military service or within one year of discharge. Rather, the medical evidence of record shows that the Veteran was first diagnosed with peritoneal mesothelioma in November 2012. There was no discussion in the Veteran's treatment records regarding a relationship to asbestos exposure in military service versus exposure in his post-service civilian occupation. A VA medical opinion was provided in December 2013. It was determined that it was as least as likely as not that the Veteran's post-service profession as a telephone line splicer contributed materially or substantially to his death. No further rationale was provided. An additional VA medical opinion was provided in November 2016. The examiner provided citations to a number of medical research sources and determined that current medical authority holds that mesotheliomas are unquestionably caused by asbestos exposure. However, when there are more than one exposure sources, it is the source with the most prolonged exposure that is seen as the most likely cause. In this case, it was determined that both serving as a Navy fireman and as a telephone line splicer were both professions with high likelihood of asbestos exposure due to established research and literature on the type of material used and activities involved. Therefore, because the Veteran spent decades as a line splicer and only 4 years as a Navy fireman, his greatest amount of exposure would have occurred during his post-service career, and because the most prolonged exposure has been scientifically found to generate the greatest likelihood of mesothelioma development, it is the career as the line splicer that is the most likely cause of the Veteran's condition and eventual death. The appellant's representative has provided a counter argument to the findings of the VA examiners. In this regard, it has been posited in a May 2021 email that the Veteran's short term exposure during his Navy service was actually of greater severity and duration that that of his post-service career as a line splicer. The representative appears to have provided a conversion chart showing the different amounts of asbestos exposure for the Veteran's different occupations, with the greater exposure being afforded to the Navy service. However, the email does not appear to have provided any citations to scientific or medical authority regarding how the estimate values were calculated. Additionally, no credentialling information was provided about the representative or that person's staff showing levels of scientific or medical expertise. In light of the forgoing, the evidence fails to support the conclusion that service connection is warranted for peritoneal mesothelioma. Although differing opinions have been provided on the matter of whether the Veteran's Navy service or post-service line splicer occupation caused the development of mesothelioma, the Board finds that the most probative evidence has been provided by the 2016 VA examiner, as that person is a competent and credible medical expert who provided a well-reasoned rationale and citations to medical and scientific authority. The Veteran's representative has not been shown to possess such medical or scientific expertise and has not provided citations for his most critical argument, namely that Navy service equates to greater exposure in the short term than service as a line splicer over several decades. Therefore, because the Veteran's peritoneal mesothelioma, shown as the immediate cause of his death respectively, is not service-connected, and the Veteran had no other service-connected disabilities that can be reasonably considered to have been in a causal relationship, service connection for the cause of death is, thus, unfounded. Accordingly, the claim must be denied. The Board has considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against the Veteran's claim, the Board finds that this doctrine is not for application. 38 U.S.C. § 5107 (b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SMC The regulations provide additional compensation on the basis of being housebound where the veteran has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350. Regarding the criteria necessary for housebound status, none of the Veteran's service-connected disabilities were rated as 100 percent disabling. Therefore, he does not meet the legal criteria for payment of compensation at the housebound rate under that criterion. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350. Additionally, a VA medical opinion was provided in December 2013 in which it was determined that the Veteran's non service-connected mesothelioma alone caused the Veteran to be housebound for VA purposes. There have been no medical findings of record that show that the Veteran's service-connected scars had contributed in any way, singularly or collectively, to his housebound status. Accordingly, the Veteran did not qualify for SMC housebound due to his service-connected disabilities, and the claim is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.