Citation Nr: 9833829 Decision Date: 11/17/98 Archive Date: 11/24/98 DOCKET NO. 97-01 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the veteran’s death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active naval service from December 1942 to January 1946; he died in August 1994 at age 69. This matter comes to the Board of Veterans’ Appeals (Board) from the Department of Veterans Affairs (VA) Los Angeles Regional Office (RO) September 1995 rating decision which denied service connection for the cause of the veteran’s death. In her December 1996 substantive appeal, the appellant requested a Travel Board hearing. By January 13, 1997 letter, the RO informed her that her name was placed on the list of persons wishing to appear before a Member of the Board; if she did not wish to wait for a Travel Board hearing, she was requested to so notify the RO. On January 20, 1997, she executed another substantive appeal, received at the RO on January 23, 1997, indicating that she did not wish a Travel Board hearing. Thus, the Board is satisfied that she no longer desires a hearing before a Board Member and her request for same is considered to have been effectively withdrawn. 38 C.F.R. § 20.704(e) (1998). CONTENTIONS OF APPELLANT ON APPEAL The appellant, the veteran’s surviving spouse, contends that she is entitled to service connection for the cause of the veteran’s death as respiratory failure resulting in his death in August 1994 was directly related to his asbestos exposure during active naval service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. 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 not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of service connection for the cause of the veteran’s death is well grounded. FINDINGS OF FACT 1. The veteran died in August 1994 at age 69; the immediate cause of his death was respiratory failure due to carcinomatosis and carcinoma of lung. 2. At the time of his death, service connection was not in effect for any disability. 3. No pulmonary disease, to include carcinomatosis or carcinoma of lung, was evident in service; there is no competent (medical) evidence of record linking the veteran’s death to service or asbestos exposure in service. CONCLUSION OF LAW The appellant has not presented a well-grounded claim of service connection for the cause of the veteran’s death. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be allowed for a chronic disability, resulting from an injury or disease, which is incurred in or aggravated by the veteran’s period of active wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be allowed on a presumptive basis for bronchiectasis, active tuberculosis, and malignant tumors, if the pertinent disability becomes manifest to a compensable degree within 1 year after the veteran’s separation from service (within 3 years after service separation in the case of active tuberculosis). 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). To establish service connection for the cause of the veteran’s death, it must be shown that a disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1998). The threshold question which must be resolved is whether the appellant has presented evidence that her claim is well grounded. See 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A mere allegation that a disability is service connected is not sufficient; the appellant must submit evidence in support of her claim which would justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of medical diagnosis or causation, competent (medical) evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Libertine v. Brown, 9 Vet. App. 521 (1996); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, lay statements regarding a medical diagnosis or causation do not constitute evidence sufficient to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Grottveit, 5 Vet. App. at 93. While there is no current specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations, the VA has issued procedures on asbestos-related diseases which provide some guidelines for considering compensation claims based on exposure to asbestos in VA ADJUDICATION PROCEDURE MANUAL, M21-1, Part VI, 7.21 (this was formerly Department of Veteran’s Benefits, DVB, Circular 21-88-8, Asbestos-Related Disease (May 11, 1988)). These guidelines for claims involving asbestos-related diseases provide that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease and that an asbestos- related disease can develop from brief exposure to asbestos. M21-1, Part VI, 7.21(b)(2). Some of the major occupations involving asbestos exposure include work in shipyards. M21- 1, Part VI, 7.21(b)(1). There is a prevalence of asbestos- related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b)(2). It is a fact that many U.S. Navy veterans during World War II were exposed to chrysotile products, as well as amosite and crocidolite, since these varieties of African asbestos were used extensively in military ship construction. Id. VA must analyze a claim of entitlement to service connection for asbestosis under these administrative guidelines. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must also determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran’s claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO’s compliance with the Circular’s claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1). In this case, the record shows that the RO complied with these procedures, as is discussed further below. The veteran died in August 1994 at age 69. The death certificate lists the cause of his death as respiratory failure due to carcinomatosis (the time interval between onset and death listed as “months”) and carcinoma of lung (the time interval between onset and death listed as “years”). During his lifetime, service connection was not in effect for any disability, nor had any claim for VA disability benefits been filed prior to his death. The veteran’s service medical records do not reveal any reports or clinical findings indicative of the presence of any respiratory symptomatology or disabilities. On service separation medical examination in January 1946, a history of asthma from 1929 to 1933 was indicated but contemporaneous examination was normal; X-ray study of the chest revealed “no essential deviation from normal.” His service records reveal that he had a period of service aboard the U.S.S. Loy. A March 1995 statement from R. M. reflects that he served together with the veteran aboard the U.S.S. Loy for a period of 2 months. He indicated that he knew another shipmate from the Loy who had developed lung cancer because of asbestos exposure, and that it was believed that such lung cancer “could have been dormant for 50 years.” Medical records from the High Desert Medical Group (HDMG), Antelope Valley Hospital Medical Center, and University Medical Imaging Center from November 1993 to August 1994 reveal extensive treatment associated with the veteran’s lung cancer and metastatic disease, initially diagnosed in April 1994 based on clinical interpretation of a routine chest X- ray study. During the course of treatment, it was indicated that he had a history of basal cell carcinoma since December 1993, and that he had a long history of smoking cigarettes (but was noted to have quit smoking approximately in 1990). A July 1996 letter from J. Barstis, M.D., reveals that he reviewed the veteran’s medical records of treatment from the HDMG, including 2 chest X-ray studies, which did not reveal definite changes suggesting the presence of asbestosis, and could not say, therefore, that he did have asbestosis. Dr. Barstis indicated that a pulmonary specialist or radiologist would have to review the veteran’s records in order to determine whether the veteran did have asbestosis. The veteran’s claims folder was reviewed by a VA physician in February 1997 to determine whether his death due to lung cancer may have been related to asbestos exposure. The examiner noted the presence of a pathology report showing that the veteran had an “oat cell” carcinoma of the lung and died from carcinomatosis secondary to his neoplasm. The physician opined that oat cell carcinoma of the lung is not causally related to asbestos exposure but that there was an occupational/exposure risk between this type of cancer and exposure to chloromethyl ether (an industrial solvent). Although the veteran was likely to have had extensive exposure to asbestos both during service and thereafter, there was no evidence that he had pleural or mesothelial lesions which are characteristic of asbestosis. The examiner opined that there was no causal relationship between the veteran’s asbestos exposure and his death. Based on the foregoing, the Board finds that the claim of service connection for the cause of the veteran’s death is not well grounded, as there is no competent (medical) evidence indicating that the immediate cause of his death, respiratory failure due to carcinomatosis and carcinoma of lung, was the result of a disease or disability incurred in or aggravated by active service, was caused by asbestos exposure, or was substantially or materially contributed to by a disease incurred in or aggravated by the veteran’ wartime service. Although the time of onset of the veteran’s lung cancer is not clear, the evidence demonstrates that it was first diagnosed almost 50 years after service separation and less than a year prior to his death in August 1994. Lung cancer or any other pertinent pulmonary disability listed in 38 C.F.R. §§ 3.307, 3.309 does not appear to have been evident in service or to a compensable degree within the presumptive period after separation from service. The veteran’s service medical records do not show any reports, clinical findings, or in-service treatment associated with the presence of any pulmonary symptomatology or diseases associated with asbestos exposure. Although the interval between time of onset of his lung carcinoma and death was noted on his death certificate as “years,” there is no medical evidence showing that his lung cancer was related to his period of active service, to asbestos exposure, or to any disease or injury incurred in or aggravated by service. Thus, the entirety of the evidence of record does not show the required nexus between the cause of the veteran’s death and service, asbestos exposure, or any injury or disease incurred in or aggravated by service. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also, Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Moreover, the veteran’s claims folder was reviewed by a VA examiner in February 1997. Based on his review of the pertinent evidence of record, he did not conclude that the veteran’s death was related to service or a disease or injury incurred in or aggravated by service. Most importantly, the examiner opined that there was no causal relationship between the type of lung cancer which caused the veteran’s death and exposure to asbestos. Finally, Dr. Barstis indicated in July 1996 that clinical records immediately prior to the veteran’s death did not suggest that he had a lung disease attributable to asbestos exposure. The appellant’s repeated contention that the veteran’s lung cancer developed as result of asbestos exposure during active naval service has been considered. However, while the appellant in this case is arguably competent to testify with regard to exposure to asbestos-containing materials during the veteran’s service (the parties were married in September 1944), the only evidence of record before the Board specifically linking his lung cancer to such exposure consists of the appellant’s own contentions. Such contentions, however, are insufficient to well ground her claim because she is a lay person and not competent to offer evidence requiring medical experience and specialized medical knowledge and skill. Grottveit, 5 Vet. App. at 93; citing Espiritu, 2 Vet.App. 494. Accordingly, she is not qualified to show the etiological link between the veteran’s in-service exposure to asbestos and the onset of his lung cancer causing his death in 1994. The determinative issue in this case is medical in nature, and medical evidence linking his cause of death to asbestos exposure has not been submitted or identified. The appellant’s opinion that the veteran had asbestosis, and/or her opinion that a condition leading to the veteran’s death is attributable to asbestos exposure during his military service, is not sufficient to render her claim well grounded. Such an opinion is entitled to no evidentiary weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Although the appellant’s claim has been considered and denied by the Board on a ground different from that of the RO, which denied the claim on the merits, she has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than her claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board also finds that the RO has advised the appellant of the evidence necessary to establish a well-grounded claim, and she has not indicated the existence or availability of any pertinent medical evidence that has not already been obtained, or attempted to be obtained, to well ground her claim. Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff’d sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The appellant’s representative contends that the Veterans Benefits Administration Manual M21-1, Part III, Ch. 1, Para. 1.03(a), and Part VI, Ch. 2, Para. 2.10(f) (1998) indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. The representative did not suggest what additional development is indicated and the Board is of the opinion that the RO has already fully developed the case to the extend possible. See Ashford, 10 Vet. App. at 122, 124-25 (discussing development under DVB Circular) and the medical opinions of July 1996 and February 1997 which rule out a link between the veteran’s exposure to asbestos in service and the lung pathology which led to his death. ORDER Service connection for the cause of the veteran’s death is denied. Gary L. Gick Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court 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. - 2 -