Citation Nr: 0937696	
Decision Date: 10/02/09    Archive Date: 10/14/09

DOCKET NO.  05-11 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to service connection for the cause of the 
veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and D.M.S.




INTRODUCTION

The veteran served on active duty from November 1948 to 
November 1952, and died in October 2004.  The appellant is 
his widow.  This matter comes before the Board of Veterans' 
Appeals (Board) on appeal from the Department of Veterans 
Affairs (VA) Regional Office in Winston-Salem (RO).

This appeal has been advanced on the Board's docket pursuant 
to 38 C.F.R. § 20.900(c) (2008).  38 U.S.C.A. § 7107(a) (2) 
(West 2002).


FINDINGS OF FACT

1.  The veteran died in October 2004, at the age of 74; the 
immediate cause of death was suspected acute ischemic 
cardiovascular event.  Congestive heart failure (CHF) and 
chronic renal failure were listed as significant conditions 
contributing to death but not resulting in the underlying 
cause.  An autopsy was not performed.  

2.  At the time of the veteran's death, service connection 
was not in effect for any disability.

3.  The evidence with respect to whether a disability of 
service origin substantially or materially contributed to the 
veteran's death is in relative equipoise.


CONCLUSION OF LAW

A disability related to active service caused or contributed 
substantially or materially to cause the veteran's death.  38 
U.S.C.A. §§ 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 
3.310, 3.312 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Pertinent regulations concerning VA's duties to notify and 
assist were recently amended, and VA has issued regulations 
implementing these amendments.  See 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008); see also 
Hupp v. Nicholson, 21 Vet. App. 342 (2007).  Without deciding 
whether VA's duties to notify and to assist have been 
satisfied in the present case, adjudication of the appeal may 
proceed, because action favorable to the appellant is being 
taken in granting the issue on appeal.  As such, this 
decision poses no risk of prejudice to the claimant.  See, 
e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also 
Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 
16-92, 57 Fed. Reg. 49,747 (1992).

To establish service connection for the cause of the 
veteran's death, the evidence must show that a disability 
incurred in or aggravated by service either caused or 
contributed substantially or materially to cause death.  38 
U.S.C.A. § 1310; 38 C.F.R. §§ 3.310, 3.312.  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.  Id.  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.  Id.  At the time of the veteran's 
death, service connection was not in effect for any 
disability. However, this does not preclude a finding that 
the veteran's death was 
service-connected, if the evidence shows that the veteran 
died of a disorder that was ultimately related to his 
military service; the requirements set forth by 38 U.S.C.A. § 
1310 do not require a service-connected disability to be the 
primary cause of death, only to be "etiologically related" 
or "causally connected."  38 U.S.C.A. § 1310; 38 C.F.R. § 
3.312.

In this case, the appellant asserts that the veteran's 
asbestosis was a factor in his October 2004 death, the causes 
of which were documented as acute ischemic cardiovascular 
event, CHF, or chronic renal failure.  The Board notes that 
service connection was not claimed or granted for any 
disabilities during the veteran's lifetime.  Additionally, 
service connection was denied on two separate occasions for 
two distinct pulmonary disorders:  an unappealed March 2004 
rating decision denied service connection for chronic 
obstructive pulmonary disease; an unappealed August 2004 
rating decision denied service connection for a chronic lung 
disorder, to include asthma.  

However, the record also reflects that the veteran was first 
diagnosed with asbestosis in the late 1970s, and there are 
several objective medical opinions which speak to the 
relationship between the veteran's asbestosis and the 
conditions which caused his death.  Specifically, two private 
opinions, as well as two statements from the veteran's 
daughter, a physician's assistant, conclude that the 
veteran's asbestosis was indeed a contributing factor in his 
death.  Conversely, two VA opinions conclude that the 
veteran's asbestosis was not related to the causes of death 
listed on the death certificate: acute ischemic 
cardiovascular event, congestive heart failure, and chronic 
renal failure.

In March 2005, the veteran's private physician, who had 
treated him through the time of his death, concluded that his 
asbestosis contributed to his causes of death.  Similarly, an 
August 2007 private opinion concluded that "on a more likely 
than not basis" that the veteran's sudden death was 
exacerbated and accelerated by his asbestosis.  Specifically, 
the August 2007 opinion noted that the veteran's inservice 
asbestos exposure contributed to his lung disease 
(asbestosis), and based on the records, that asbestosis 
caused or significantly contributed to the veteran's death.

The veteran's daughter, D.M.S., who also testified at the 
August 2007 Board hearing, submitted statements which 
detailed her belief that her father's asbestosis contributed 
to his death.  She noted in September 2005 that his lung 
disease, due to asbestosis, was the determining factor in the 
body's demise.  In her May 2006 statement, she noted that she 
witnessed the veteran's death.  At the time, his cardiac 
functions were being stabilized by machines, so at the moment 
of death, the fact that the veteran could not breathe was 
clear evidence that his death was not a result of his cardiac 
condition or his renal condition.  Moreover, she stated, the 
death of the veteran "was not primary (sic) cardiopulmonary 
nor renal related as it was due to the ridgity (sic) of the 
lungs from the early asbestosis in the Navy tour in the 
1950s."

Conversely, the April 2006 VA opinion noted that the veteran 
had minimal pulmonary asbestosis, but did have significant 
cardiovascular disease including coronary artery disease and 
congestive heart failure.  Thus, the terminal events were 
more likely reflective of cardiopulmonary failure than any 
asbestosis-related cause.  Similarly, the July 2009 VA 
opinion found that the veteran's death was "less likely as 
not" caused by or the result of asbestosis.  in providing a 
rationale for this opinion, the examiner stated that the 
veteran's records reflected multiple cardiac conditions, each 
of which was severe enough to account for all of the 
veteran's pulmonary dysfunction, and taken as a group, were 
most likely the cause of the veteran's pulmonary malfunction 
and death.

Based on review of that objective medical evidence of record, 
there is no reason to conclude that any of these opinions 
should not be afforded probative value.  Each opinion, to 
include those provided by the veteran's daughter, was given 
by medical professionals with sufficient experience in the 
pulmonary and cardiovascular medical specialties.  Moreover, 
there is objective clinical evidence in the claims file 
consistent with each of the conclusions stated.  Accordingly, 
the Board finds that the evidence is at least in equipoise 
with regard to the appellant's claim, and therefore, applying 
the benefit of the doubt doctrine, service connection for the 
cause of the veteran's death is warranted.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 
53-56 (1990).


ORDER

Service connection for the cause of the veteran's death is 
granted.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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