Citation NR: 9804474 Decision Date: 02/13/98 Archive Date: 02/17/98 DOCKET NO. 96-44 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from April 1954 to June 1957. The appellant is the veteran’s widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied entitlement to service connection for the cause of the veteran’s death. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the death of the veteran, her husband, was caused by his military service. She maintains that the veteran was exposed to asbestos during service which led to lung cancer. She contends that the cause of death listed on the death certificate (metastasized prostate cancer) is incorrect and that the veteran’s lung cancer was the true cause of his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has failed to satisfy the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim for service connection for the cause of the veteran’s death is well grounded. FINDINGS OF FACT 1. The veteran died on May [redacted], 1995. 2. According to the veteran’s death certificate, the immediate cause of his death was metastasized prostate cancer. However, the medical evidence suggests that this finding was incorrect and that adenocarcinoma of the right lung with metastasis to the brain was, at a minimum, a contributory cause of the veteran’s death. 3. Prior to his death, the veteran had no service-connected disabilities. 4. The appellant has presented competent evidence that the veteran was exposed to asbestos during service. 5. The appellant has not presented competent medical evidence showing that either the prostate cancer or lung cancer that caused the veteran’s death developed during service or was in any manner related to his service. 6. The appellant has not presented competent medical evidence that the veteran’s alleged asbestos exposure during service caused the veteran’s lung cancer or contributed to the veteran’s death. 7. The appellant’s claim for service connection for the cause of the veteran’s death is not plausible. CONCLUSION OF LAW The claim for service connection for the cause of the veteran’s death is not well grounded, and there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran did not apply for service connection for any disorder during his lifetime. In September 1988, he applied for nonservice-connected pension due to bladder and kidney carcinoma. The RO obtained the VA discharge summary from a period of hospitalization in September 1988 which showed a diagnosis of bladder tumor versus diffuse cystitis. There were no findings regarding prostate cancer or lung cancer. In May 1993, the veteran applied for special monthly pension. The RO obtained the VA discharge summary for a period of hospitalization from May 1993 to June 1993. The summary indicated that the veteran had unresectable adenocarcinoma of the lung which had been diagnosed in 1989. He was status post a radical prostatectomy in July 1989. Physical examination upon admission was unremarkable. His lungs showed decreased breath sounds, but no wheezes were auscultated. A chest x-ray continued to show a density in the hilum of the right mid-lung field which was unchanged since the previous examination. The veteran underwent radiation therapy during this period of hospitalization. The discharge diagnoses included adenocarcinoma of lung, inoperable. In connection with his claim, the veteran underwent a VA examination in November 1993. He indicated that he had had cancer of the prostate in 1989 and was treated with a prostatectomy at that time. He indicated that in May 1993 he developed an adenocarcinoma of the lungs which was inoperable and for which he had received radiation therapy. The veteran did not have any specific respiratory complaints; he complained of generalized weakness, difficulty sleeping, and weight loss. The diagnoses included adenocarcinoma of lungs, status post radiation therapy, diagnosed in May 1993, and adenocarcinoma of prostate, 1989. A rating decision of December 1993 denied entitlement to special monthly pension, and the veteran filed another claim in September 1994. The RO obtained a VA discharge summary for a period of hospitalization from September 1994 to October 1994. The summary indicated that the veteran’s past medical history included carcinoma of the prostate and right lung adenocarcinoma diagnosed in 1991, status post radiation therapy. It was noted that brain metastasis was discovered in July 1994 through a brain MRI, and the veteran was hospitalized for radiation treatment. It was noted that a chest x-ray in July 1994 showed a right upper lobe mass which was unchanged from March 1994. The physical examination upon admission showed that his lungs were clear bilaterally. The discharge diagnoses included adenocarcinoma of the right lung with brain metastasis, status post radiation therapy, and history of carcinoma of the prostate. In connection with his claim, the veteran underwent a VA physical examination in November 1994. He indicated that he had recently been hospitalized for radiation treatment for brain metastasis from adenocarcinoma of the right lung. The veteran did not have any specific respiratory complaints; he complained of generalized weakness, pain all over, and frequent vomiting. The diagnoses included adenocarcinoma of lungs, status post radiation therapy in 1991 with brain metastases, status post radiation in 1994, and carcinoma of the prostate, 1988. A rating decision of November 1994 granted the veteran special monthly pension. In January 1995, the RO obtained the veteran’s VA medical records covering the period September 1994 to November 1994. The discharge summary for a period of hospitalization from September 1994 to October 1994 was duplicative. Treatment notes dated November 1994 showed continued treatment for his brain tumor. In June 1995, the appellant filed a claim for Dependency and Indemnity Compensation. She indicated that she was not claiming that the cause of the veteran’s death was due to service. She submitted a copy of a death certificate which showed that the veteran died on May [redacted], 1995, at his home. The immediate cause of the veteran’s death was listed as metastasized prostate cancer. An autopsy was not performed. It is not indicated that the deputy coroner who signed the death certificate was a physician. In October 1995, the appellant filed a claim for service connection for the cause of the veteran’s death. She stated that although his death certificate showed the cause of death as prostate cancer, the cancer began in his lungs. She stated that the veteran was a boiler technician in the Navy and that he was exposed to airborne asbestos during service. She stated that she believed the veteran’s asbestos exposure caused his lung cancer. The RO obtained the veteran’s VA medical records covering the period May 1994 to May 1995. A progress note dated June 1994 indicated that a CT of the chest in March 1994 had shown no change in the veteran’s lung cancer. A progress note dated November 1994 indicated that the veteran had undergone palliative radiation treatment to the whole brain for brain metastasis of bronchogenic carcinoma in October 1994. It was noted that he had also previously undergone radiation treatment for adenocarcinoma of the right middle lung in July 1993. The physical examination showed that he had clear breathing sounds to auscultation and percussion. The examiner’s impression was adenocarcinoma of the right middle lung with brain metastasis, treated with palliative radiation therapy. An abbreviated medical record for a period of hospitalization in early February 1995 indicated that the veteran was admitted to rule-out cord compression. He was status post radical prostatectomy in 1989 secondary to adenocarcinoma with a repeat biopsy in 1993 which was negative. Adenocarcinoma of the lung was diagnosed in 1993. He was status post metastasis to the brain in 1994 shown by CT, with radiation with good improvement. An MRI done in December 1994 had shown that he had a new metastatic lesion to the left parietal lobe posteriorly. He also had bilateral anterior cervical and supraclavicular node adenopathy for which he started radiation treatment in early February 1995. The social history indicated that the veteran had a 100+ pack a year history of smoking. Examination of his lungs upon admission showed that the left side was clear to auscultation, and the right side had occasional rhonchi and wheezes, as well as a mild decrease in breath sounds in the upper lobe. The discharge diagnoses included prostate cancer and lung cancer with brain metastasis. In late February 1995, the veteran underwent a course of palliative radiation treatment for metastatic bilateral lower neck masses of bronchogenic carcinoma. An abbreviated medical record for a period of hospitalization in late February 1995 indicated that the veteran had metastatic adenocarcinoma of the brain. He was admitted due to complaints of difficulty speaking, confusion, and staggering. It was noted that the veteran had continued to smoke 2-3 packs of cigarettes a day despite admonishment. The physical examination of his lungs upon admission showed that he had bilateral rhonchi. It was indicated that chest x-rays were performed, but the results were not given. The discharge diagnoses included adenocarcinoma of the right lung with metastasis to the brain. The balance of the outpatient treatment records showed the veteran’s ongoing treatment for his various medical conditions without any additional significant medical findings. He had a stroke in March 1995. It was noted in April 1995 that he had a slow worsening in functional status. In December 1995, the appellant submitted a statement regarding the veteran’s claimed asbestos exposure. She stated that he was assigned to the U.S.S. Kearsarge for his entire period of service. She indicated that he held a fireman rating and was possibly exposed to asbestos during boiler repairs and various other maintenance while assisting shipfitters and hull technicians. She stated that since he had a lower rank, he would have performed the physical labor part of this work such as tearing out and disposing of asbestos insulation which surrounded the pipes and boilers. She stated that the veteran’s primary duty during service was operation and maintenance of the ship’s boilers, but he also assisted the shipfitters, hull technicians, and yard personnel in the removal of asbestos insulation from the boilers and pipes, as well as the replacement of insulation. She indicated that after service the veteran worked as a pipeline welder and did not work with asbestos. In April 1996, the RO obtained the veteran’s service medical records. The report of his entrance examination dated April 1954 showed that his chest x-ray was normal. The report of his separation examination dated June 1957 indicated that the chest x-ray showed a congenital lobulation of the right diaphragm. His DD-214 shows that his military occupational specialty was boiler operator helper. His personnel records show that he was assigned to the U.S.S. Kearsarge for his entire tour of duty. A rating decision of May 1996 denied service connection for the cause of the veteran’s death. In her notice of disagreement, the appellant maintained that the veteran was exposed to asbestos during service. She stated that the veteran’s VA medical records showed that he was diagnosed with lung cancer in 1993, and there was no evidence that the lung cancer was metastasized from the prostate cancer. She stated that the veteran’s death certificate was completed by a lay coroner who was not qualified to render a medical opinion as to cause of death. She stated that the coroner was not familiar with the veteran’s medical history, and he entered the cause of death after questioning the appellant about the veteran’s medical problems. She stated that the veteran suffered no further complications after his prostate surgery and that the medical evidence showed the lung cancer was a separate condition. She stated that nowhere in the veteran’s medical records was there a diagnosis of metastasized prostate cancer. She stated that adenocarcinoma of the lungs and brain was the true cause of the veteran’s death, and the death certificate was inaccurate and irrelevant to any decision as to service connection for the cause of the veteran’s death due to asbestos exposure. In her substantive appeal, the appellant raised essentially the same contentions. She indicated that the Merck Manual stated that symptoms of asbestosis are difficult to diagnose and may be confirmed only by biopsy or autopsy. She indicated that neither was performed in the veteran’s case. She stated that the Merck Manual also indicated that the prognosis for patients with bronchogenic carcinoma of the lung emphasized the importance of prevention and that substances associated with lung cancer such as tobacco and potentially carcinogenic industrial substances, such as asbestos, must be reduced below dangerous levels. II. Legal Analysis The threshold question that must be resolved is whether or not the appellant has submitted a well-grounded claim for service connection for the cause of the veteran’s death. 38 U.S.C.A. § 5107(a) (West 1991). If the appellant has not presented a well-grounded claim, then the appeal fails as to that claim, and the Board is not obligated under 38 U.S.C.A. § 5107(a) to assist her any further in the development of that claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Under the pertinent statutes and regulations, 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) (1997); see 38 U.S.C.A. § 1310 (West 1991); see also 38 U.S.C.A. §§ 1110 and 1112 (West 1991 & Supp. 1997) (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) (1997). 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) (1997). 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. Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. §§ 3.303(a), (b) and (d) (1997). Establishing direct service connection for a disability which has not been clearly shown in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110 and 1131 (West 1991); 38 C.F.R. § 3.303(d) (1997); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1997). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1996); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is “a plausible claim, one that is meritorious on its own or capable of substantiation.” Robinette v. Brown, 8 Vet. App. 69, 73-74 (1995); Murphy, 1 Vet. App. at 81; see also Johnson v. Brown, 8 Vet. App. 423, 426-27 (1995) (applying well-grounded claim requirement in context of service connection for cause of veteran’s death). The quality and quantity of evidence required to make a claim well grounded depends upon the issue presented by the claim. Where the determinative issue concerns matters of medical causation or diagnoses, competent medical evidence attesting that the claim is plausible or possible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, 1 Vet. App. at 81). The appellant cannot meet her initial burden under 38 U.S.C.A. § 5107(a) simply by relying on her own opinion as to medical causation; lay persons are not competent to offer medical opinions. Grottveit, 5 Vet. App. at 93 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)). The death certificate lists the cause of death as metastasized prostate cancer. The appellant maintains that this finding by a lay coroner was inaccurate. Based on a thorough review of the medical evidence, the Board is overwhelmingly convinced that the veteran’s cause of death as stated on the death certificate was the result of pure speculation and based solely upon a history provided by the appellant. The evidence does not show that the coroner was a medical professional qualified to render a medical opinion. Furthermore, the evidence does not show that the coroner ever treated the veteran, reviewed any medical records pertaining to the veteran, or, indeed, ever saw the veteran prior to his death. The veteran died at home, and the appellant’s statements indicate that the coroner, at best, conducted a very cursory examination. The medical evidence shows that the veteran had a radical prostatectomy in 1989 due to prostate cancer. A repeat biopsy in 1993 was negative. The medical evidence subsequent to 1989 consistently refers to the veteran’s prostate cancer as “history of” or “status post.” There is no medical evidence of a reoccurrence of prostate cancer nor is there any medical evidence that the prostate cancer metastasized. The veteran was diagnosed with adenocarcinoma of the right lung in 1993, and the medical evidence shows that the lung cancer was inoperable and metastasized to the brain in 1994. There is no medical evidence that the veteran’s lung cancer was a result of his prostate cancer. At the time of his death, the veteran’s medical conditions included adenocarcinoma of the right lung with metastasis to the brain, and it is plausible that this condition was, at a minimum, a contributory cause of his death, and the Board will analyze the appellant’s claim for service connection for the cause of the veteran’s death accordingly. In this case, since the veteran had no service-connected disabilities at the time of his death, the evidence would need to show that his death was caused by a disability for which service connection should have been established. There is no competent medical evidence associated with the claims file showing that the veteran’s prostate cancer developed during service. His service medical records revealed that no prostate problems were reported during his military service. The first evidence of record showing the presence of prostate cancer is in 1989, approximately 32 years following the veteran’s separation from service. Moreover, the record lacks evidence of a nexus, or link, between prostate cancer and the veteran’s active service. There are no medical opinions contained in any of the veteran’s post-service medical records relating his prostate cancer to any event in active service. In fact, the appellant does not argue that the veteran’s prostate cancer was incurred in service. Rather, she contends that the veteran was exposed to asbestos during service which caused his lung cancer. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter M21-1). VA must analyze the appellant’s claim of entitlement to service connection for the cause of the veteran’s death based on asbestos exposure under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. Some of the major occupations involving asbestos exposure include work in shipyards and insulation work. M21-1, Part VI, 7.21(b)(1), p. 7-IV-3 (January 31, 1997). There is a prevalence of asbestos-related disease among shipyard and insulation workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). The appellant’s contentions regarding the veteran’s exposure to asbestos during service are plausible. Furthermore, his service records indicate that his main occupation was boiler operator helper and he served aboard the U.S.S. Kearsarge for his entire period of service. There is no evidence contradicting the appellant’s assertions of the veteran’s exposure to asbestos, and her assertions are consistent with the veteran’s service occupation and duty. Based on this evidence, exposure to asbestos during service is established. See McGinty v. Brown, 4 Vet. App. 428 (1993) (held that the veteran’s testimony as to the cause of his disease was not competent evidence of causation because the determination of the cause of a disease is a medical matter; however, the veteran was competent to testify as to the facts of his asbestos exposure, i.e., wearing asbestos gloves while performing his duties as a “hot caseman” in the Navy). Furthermore, the appellant’s contention that exposure to asbestos can cause lung cancer is correct. See M21-1, Part VI, 7.21(a)(1) and (3), p. 7-IV-3 (January 31, 1997). It is also true that the risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. M21-1, Part VI, 7.21(a)(3), p. 7-IV-3 (January 31, 1997). However, there is no competent medical evidence associated with the claims file showing that the veteran’s lung cancer developed during service or as a result of asbestos exposure. His service medical records revealed that no respiratory problems were reported during his military service. His chest x-ray upon separation from service only showed a congenital lobulation in the right diaphragm. The first evidence of record showing the presence of lung cancer is in 1993, approximately 36 years following the veteran’s separation from service. The record lacks evidence of a nexus, or link, between lung cancer and the veteran’s active service. There are no medical opinions contained in any of the veteran’s post-service medical records relating his lung cancer to any event in active service, including the alleged asbestos exposure. Furthermore, the record contradicts that such a finding is plausible. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(b)(c), p. 7-IV-3 (January 31, 1997). Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Id. The radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The veteran underwent several chest x-rays, as well as a chest CT in March 1994, as a result of his diagnosed lung cancer. These tests only showed evidence of the lung cancer, and there is no indication in the medical evidence that there were any asbestos-related changes in the veteran’s lungs. There are no medical findings of any infiltrative process, pleural effusions, fibrosis, or pleural plaques. Although the appellant is certainly correct that a biopsy or autopsy would have definitively established the presence, or lack thereof, of asbestos-related changes in the veteran’s lungs, chest x-rays also would have shown evidence of asbestos- related changes had they existed. Furthermore, despite the fact that the veteran had lung cancer, the medical evidence does not show that he had any of the signs and symptoms indicative of an asbestos-related disorder such as dyspnea on exertion and end-respiratory rales. The only statement alleging a link between the veteran’s lung cancer and military service is from the appellant. She contends the veteran was exposed to asbestos during service and that this exposure caused his cancer and subsequent death. However, there is no indication that the appellant possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette, 8 Vet. App. at 74; Espiritu, 2 Vet. App. at 494. Consequently, her statements regarding the cause of the veteran’s death are insufficient to establish a well-grounded claim for service connection for lung cancer, or the cause of the veteran’s death, on a direct basis. Therefore, her claim must be denied. The appellant has the initial burden of establishing a well- grounded claim for service connection for the veteran’s cause of death or for a disorder, and, until she does so, VA has no duty to assist her. 38 U.S.C.A. § 5107(a) (West 1991); see Grivois v. Brown, 6 Vet. App. 136, 139-140 (1994). Where a claimant refers to a specific source of evidence that could make her claim plausible, VA has a duty to inform her of the necessity to submit that evidence to complete her application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff’d Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In this case, VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete her application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground her claim for service connection for the cause of the veteran’s death. The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate the claim unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of the claim, because such additional development would be futile. See Murphy, 1 Vet. App. 78. ORDER Having found the appellant’s claim for service connection for the veteran’s cause of death not well grounded, the appeal is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -