Citation Nr: 22011128 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 20-05 782 DATE: February 25, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. The issue of entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. The Veteran's mesothelioma was caused by exposure to asbestos during active military service, and the service-connected mesothelioma caused his death. 2. The claim for entitlement to DIC under 38 U.S.C. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.312. 2. The claim for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1962 to February 1966. The Veteran died in August 2016. The appellant is his surviving spouse. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified at a Board hearing before the undersigned in December 2021; a transcript of the hearing is of record. 1. Entitlement to service connection for the cause of the Veteran's death is granted. Dependency and indemnity compensation is payable to a surviving spouse, child, or parent either because of a service-connected death occurring after December 31, 1956, or pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. 38 C.F.R. § 3.5. Service connection may be established for the cause of a Veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The evidence shows the Veteran died of mesothelioma, as confirmed by his death certificate of record. During his lifetime, the Veteran did not establish service-connected status for any disability. The Board finds that the evidence of record is now sufficient to establish the Veteran's mesothelioma as a service-connected disability for the purposes of establishing entitlement to service connection for the cause of the Veteran's death. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 8 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). To establish a right to compensation for a present disability, the evidence 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases, including malignant tumors, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in approximate balance, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the evidence weighs persuasively against the claim, it must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence shows that the Veteran had mesothelioma and that it was the cause of the Veteran's death. Specifically, the Veteran's death certificate of record confirms that the cause of the Veteran's death was mesothelioma. Thus, the Board finds that the first element of the criteria for service connection is established. See Holton, supra. The Veteran and appellant have not asserted, nor does the evidence show, that his mesothelioma was present in service or within one year of discharge. The service treatment records are negative for any indication of mesothelioma. A review of the post-service treatment records shows that the Veteran was initially diagnosed with mesothelioma in March 2016, approximately 50 years after separation from service. Thus, service connection may not be established on the basis that he had cancer in service or on a presumptive basis for a malignant tumor that manifests to a compensable degree within a year of separation. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran's personnel records reflect that the Veteran served as a Ground Radio Communications Equipment Repairman (shown in personnel records including the DD Form 214) with assignments involving radar systems and 'intricate' equipment. The Veteran's August 2016 written statement described: "my duties included operation, maintenance and repair of transmitters, receivers, and other electronics equipment." This is consistent with the information contained in the Veteran's personnel records. Significantly, the Veteran's August 2016 written statement described: While stationed in the Marshall Islands, I was frequently aboard ships which were used for transport between the islands, including the USNS Sgt. Curtis F. Shoup. These ships contained asbestos-containing insulation on piping that ran throughout the ship, asbestos-containing refractory materials and asbestos-containing equipment and parts which I was around during my time aboard these ships. I recall that the asbestos-containing insulation was friable and was often worn, frayed and torn such that when I was nearby, I would breathe in asbestos fibers from the insulation. The Board notes that the Veteran's service personnel records present information that is essentially consistent with the Veteran's August 2016 description of the nature of his service. The Board notes that an October 1965 personnel record shows that the Veteran "performed duty as second hiran operator and assistant station chief at Nukunau Atoll in the Gilbert Islands." A November 1965 personnel record shows that the Veteran was responsible for "ground electronic hiran stations while on TDY projects in remote overseas areas" and was "being assigned to one of the Aerial Survey Teams operated by the 1370th Photo Mapping Wing in overseas areas." The Board finds that the Veteran's testimony describing service aboard ships while stationed in remote Pacific islands is consistent with the nature of the Veteran's documented service assignments. The Board is satisfied that the evidence reasonably supports finding that the Veteran's service included time spent aboard ships in the Pacific islands. VA has acknowledged that work with ships can result in asbestos exposure. https://www.publichealth.va.gov/exposures/asbestos/index.asp. Additionally, a written statement submitted in January 2022 by the Veteran's treating physician identifies other sources in public health literature that "details that asbestos-containing insulation was used extensively in U.S. Military ship construction during the time period that [the Veteran] served and traveled aboard ships such as the USNS Curtis F. Shoup." Additionally, "[w]hen vessels such as this are at sea, flaking and cracking from vibrations due to the ship's motions can release asbestos fibers from these sources. The levels of asbestos fibers released from such insulation are far in excess of what OSHA considers to be a 'permissible' level of exposure." Furthermore, "[t]he United States Maritime Commission studies found that 'Long after the vessel had been at sea, flaking and cracking due to ships motions and vibration and motion are suspected of releasing asbestos into the surrounding space[,]'' and thus "the hazards from asbestos exposures are not confined to shipbuilders only, but to a vessel's crew while aboard the ship." Affording the Veteran the benefit of reasonable doubt, the Board finds that the Veteran was exposed to asbestos in service. The January 2022 private medical opinion authored by the Veteran's treating physician includes the conclusion that the Veteran's "mesothelioma and subsequent death from that disease was caused by his exposure to asbestos while aboard military ships in connection with his service." The rationale for this opinion features detailed discussion of the medical community's knowledge of mesothelioma, including that the "great majority of mesotheliomas are due to asbestos exposure," and "[m]esothelioma can occur in cases with low asbestos exposure." The physician notes that pertinent medical consensus indicates that "[a]n occupational history of brief or low-level exposure should be considered sufficient for mesothelioma to be designated as occupationally related." In light of the positive nexus opinion, and in the absence of probative evidence to the contrary, the Board finds that the competent evidence shows that the Veteran's mesothelioma is related to his in-service asbestos exposure, and nexus is established. As all three elements of service connection have been met by the findings that the Veteran had mesothelioma at the time of his death, that he was exposed to asbestos during service, and that the mesothelioma was caused by the asbestos exposure, service connection for mesothelioma is warranted. Hence, the Board finds that the evidence sufficiently supports finding that the shown cause of the Veteran's death, mesothelioma, was a service-connected disability; therefore, service connection for the cause of his death is warranted. 2. Entitlement to DIC pursuant to 38 U.S.C. § 1318 If the Veteran's death is determined not to be service connected, pursuant to 38 U.S.C. § 1318, entitlement to DIC may be established in the same manner as if the Veteran's death were service connected where it is shown that the death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death, (2) was rated totally disabled for a period of not less than five years from the date of his discharge or release from active duty or (3) was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). DIC benefits granted to a surviving spouse under § 1318 are paid in the same manner as if the Veteran's death were service connected. See 38 U.S.C. § 1318(a). In the present case, as DIC benefits have been granted in this decision based upon the award of service connection for the cause of the Veteran's death, the alternative claim under § 1318 is rendered moot. The Court has indicated that, only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). That is, § 1318 provides an alternate basis for an award of DIC and does not provide any additional benefit for the appellant. Section 1318 is only applicable if the Veteran's death is found to be nonservice-connected. See 38 C.F.R. § 3.22(a). In summary, in light of the grant of service connection for the cause of the Veteran's death under 38 U.S.C. § 1310 in the present case, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and the claim is dismissed. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Barone, Alexander 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.