Citation Nr: 1015098 Decision Date: 04/21/10 Archive Date: 04/30/10 DOCKET NO. 08-23 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Arif Syed, Law Clerk INTRODUCTION The Veteran served on active duty in the United States Navy from September 1963 to January 1967. The appellant is the surviving spouse of the Veteran. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks service connection for the cause of the Veteran's death. In essence, she claims that the Veteran's fatal lung cancer was a result of in-service exposure to asbestos. After having carefully considered the appellant's claim, and for reasons expressed immediately below, the Board finds that this case must be remanded for additional evidentiary development. Reasons for remand VCAA notice The RO provided notice to the appellant in the January 2007 VCAA letter that the evidence for a cause of death claim must show "the veteran died from a service- connected injury or disease" (see the January 12, 2007 letter, page 5). However, in light of the subsequent Court decision in Hupp v. Nicholson, 21 Vet. App. 342 (2007), more detailed notice must be provided. In the context of a claim for benefits under 38 U.S.C. § 1310 for the cause of a veteran's death, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a death claim based on a condition not yet service connected. See Hupp, 21 Vet. App. at 352-53. Such notice must be provided to the appellant. Evidentiary development and VA opinion The Veteran died in December 2005, over thirty-five years after leaving service, at the age of 59. The death certificate lists the Veteran's cause of death as lung cancer. An autopsy was not performed. In order to establish service connection for death, there must be: (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no question that element (1) has been met. The Board's discussion will therefore focus on elements (2) and (3). With respect to element (2), the Board will separately discuss in-service disease and injury. With respect to in-service disease, a review of the Veteran's service treatment records does not suggest that lung cancer was present in service. The appellant does not so contend. The Veteran's service treatment records are completely devoid of any diagnosis of or treatment for lung cancer or any lung disabilities. Notably, the January 1967 examination report for release to inactive duty noted a normal lung and chest evaluation. Concerning in-service injury, the appellant contends that the Veteran was exposed to asbestos from his service on naval ships. Service records demonstrate that the Veteran's military occupational specialty (MOS) was radar repairman. Additionally, a service treatment record indicates that the Veteran served aboard the U.S.S. WASP in June 1965, a World War II-era ship. The evidence of record, to include the Veteran's service personnel records, is unclear as to whether the Veteran was exposed to asbestos based on his MOS or service aboard naval ships. On remand, the service department must be contacted in order to ascertain whether, based on the Veteran's personnel or other records, he worked in areas and performed duties in accordance with his MOS where he would have been exposed to asbestos. With respect to element (3), medical nexus, the Veteran was afforded a VA examination in October 2005 for the purpose of ascertaining whether his claimed in-service asbestos exposure was related to his lung cancer. The VA examiner indicated that the Veteran was exposed to asbestos while in service. He further reported that asbestos exposure is known to increase the risk of developing non-small cell lung cancer. Moreover, he noted the Veteran's "significant" history of smoking, which he reported to be a factor in increasing the risk of lung cancer. He concluded that "I am unable to exclude the possibility that asbestos exposure might have had relation to [the Veteran's] lung cancer. However, I am unable to make any further determination, as the cause of lung cancer is still not known, and as it is impossible to assess the contribution of each risk factor individually." Additionally, V.A., M.D., reported in an August 2005 letter that "[the Veteran's] kind of lung cancer is associated with and the risk could increase with past asbestos exposure." However, Dr. V.A. did not specify as to when this exposure occurred, as the record indicates that the Veteran worked on a railroad after discharge from service where he was exposed to asbestos. See a VA treatment record dated February 2005. The medical opinions of record merely suggest that the Veteran's fatal lung cancer was related to in-service asbestos exposure. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [evidence which is speculative or inconclusive in nature cannot support a claim.]. Further, there is evidence in the file which suggests that the Veteran's lung cancer may be due to other causes, such as his extensive history of tobacco use and post-service asbestos exposure. If the RO determines that the Veteran worked in areas and performed duties in accordance with his MOS where he would have been exposed to asbestos, a medical opinion must be obtained which addresses whether the Veteran's fatal lung cancer was related to his in-service asbestos exposure. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED for the following action: 1. VCAA notice pursuant to Hupp v. Nicholson, 21 Vet. App. 342 (2007) should be furnished to the appellant, with a copy to her representative. The VCAA notice should include (1) a statement of the disabilities for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a death claim based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a death claim based on a disability not yet service connected. 2. Contact the service department and ask whether the service department can determine, based on the Veteran's personnel or other records, if the Veteran worked in areas and performed duties in accordance with his military occupational specialty where he would have been exposed to asbestos, including the lining and insulation of pipes on ships. All obtained information should be included in the record. In this regard, the Board notes that the VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (Sept. 29, 2006). As applicable, these procedures should e followed. 3. If it is determined that the Veteran was exposed to asbestos during service, then the RO should arrange for a physician to review the Veteran's claims folder and render an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's fatal lung cancer was related to his in- service asbestos exposure. The examiner should indicate in his/his report whether or not the claims file was reviewed. A rationale for all opinions expressed should be provided. If any opinion cannot be made without resort to speculation, the examiner should so state with supporting rationale. A report should be prepared and associated with the Veteran's VA claims folder. 4. After undertaking any additional development which it deems to be necessary, the RO should then readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).