Citation Nr: 1311993 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-03 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1958 to July 1961. The Veteran passed away on March [redacted], 2007; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, in which the RO denied entitlement to accrued benefits and to service connection for the cause of the Veteran's death. At the time of the Veteran's passing, there were pending claims on appeal for a rating in excess of 10 percent for tinnitus, a compensable rating for bilateral hearing loss, and service connection for respiratory problems due to asbestos exposure and congestive heart failure. In May 2007, prior to the June 2007 Board dismissal of the pending claims, the appellant submitted a claim for dependency and indemnity compensation, including accrued benefits and service connection for the cause of the Veteran's death; it is apparent that the May 2007 claim, although received by VA, was not before the Board at the time of the dismissal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 appeal for service connection for the cause of the Veteran's death must be remanded to obtain records and for a medical opinion. VA is obligated to assist the appellant in obtaining relevant treatment records. 38 C.F.R. § 3.159(c) (2012). The Veteran submitted a statement to VA in May 2004 indicating that he was treated for respiratory problems in a United States Navy facility in Long Beach, California, during the years 1962 and 1963; there is no indication in the claims file that VA made any attempt to determine of those records are available. The RO should obtain those records, if they still exist. The RO should also obtain any additional records from Dr. C. VanHook, the Veteran's private treatment provider. The Board specifically notes that the Veteran's original death certificate, issued April 6, 2007, only listed chronic obstructive pulmonary disease (COPD) as the cause of death. An amended death certificate, issued January 20, 2010, assigned the immediate cause of death as respiratory failure, due to pulmonary asbestosis. The change is noteworthy, as it is the appellant's contention, as it was the Veteran's, that his respiratory disease was caused, or was contributed to, by in-service asbestos exposure. At the December 2012 videoconference hearing, the appellant explained that, after receiving the RO's denial of her claim, she contacted Dr. VanHook. Dr. VanHook sent a letter to the hospice doctor who had signed the original death certificate, and subsequently the amended certificate was issued, associating the death with pulmonary asbestosis. The letter from Dr. VanHook to the hospice doctor is relevant to the appellant's claim, as it directly addresses the question of what caused the Veteran's death. The RO should request that the appellant sign a release so that a copy of that letter, as well as any additional relevant records from Dr. VanHook that are not currently associated with the claims file, can be obtained. The appeal is also being remanded to obtain a medical opinion addressing the question of the relationship between any in-service asbestos exposure and the Veteran's ultimate disease process and death. There are various references in the Veteran's private treatment records to diagnoses of asbestosis, COPD, cor pulmonale, and other diseases during the last years prior to the Veteran's death. There is some reference to exposures that he had as a result of post-service employment. Currently the record is inadequate to address the questions concerning the relationship between the Veteran's death and his military service, and as such, an opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (holding that where there is evidence of a current disability, and an indication that the disability in question may be related to an event or injury in service, but insufficient competent evidence on file to make a decision on the claim, an opinion is warranted). Therefore, after all relevant records have been obtained, the RO should seek an opinion from an appropriate specialist, addressing the questions laid out in the instructions below, which seek to determine the relationship between in-service asbestos exposure, the various respiratory diseases the Veteran developed prior to his death, and his ultimate demise. Although there are no specific records in the file concerning the specific products the Veteran used while working as a carpenter in the Army between 1958 and 1961, the Board observes that his description of asbestos exposure during that time period appears reasonable and likely, considering the timeframe and type of work with which he was involved. The specialist should take the Veteran's likely asbestos exposure into consideration when formulating his or her opinions. Post-service exposures should also be considered as appropriate. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all relevant records in Federal control, including any of the Veteran's treatment records originating in 1962-1963 at a naval shipbuilding facility in Long Beach, California. 2. Contact the appellant and request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any records from Dr. VanHook that are not currently in the claims file, to specifically include the letter he provided to the hospice doctor, referenced by the appellant in her hearing testimony, concerning the cause of the Veteran's death as listed on the death certificate. After the appellant has signed the appropriate release, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the appellant cannot be obtained, a notation to that effect should be included in the claims file and the appellant and her representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. After the completion of the foregoing, obtain a medical opinion concerning the cause of the Veteran's death from an appropriate specialist. The specialist should review the claims file, this remand, and any relevant records in the Virtual VA electronic file; the ensuing report should indicate that such a review occurred. The specialist is requested to address the following questions: (a) Did the Veteran have a diagnosis of an asbestos disease at the time of his death? Are their indications of asbestos related pulmonary disease in the available treatment records? (b) If the answer to (a) is yes, is it at least as likely as not (i.e., a 50 percent probability or more), that the Veteran's asbestos disease had its onset during service, or is otherwise etiologically related to the Veteran's exposure to asbestos while on active duty? (c) Is it at least as likely as not (i.e., a 50 percent probability or more), that the Veteran's COPD was caused by, or was aggravated by (chronically worsened beyond the natural progression of the disease), his history of in-service asbestos exposure? (d) Is it at least as likely as not (i.e., a 50 percent probability or more) that any disease etiologically related to in-service asbestos exposure (including diseases caused by or aggravated by that exposure) was the principle cause, or was a contributory cause, of the Veteran's death? (e) Is there any relationship to the cause of death and post-service exposures? In providing these opinions, the specialist should assume that the Veteran was exposed to asbestos fibers during his three years of active duty service, as a carpenter, between 1958 and 1961, through products such as insulation, floor tiles, ceiling materials, wall components, and other materials. Post-service involvement should also be considered and discussed as indicated. Please reconcile any opinion set forth with others on file. The specialist should provide a complete rationale for all opinions provided. If the specialist is unable to do so with regard to any of the opinions requested without resort to speculation, he or she should so indicate, and should thoroughly explain why no opinion can be provided without speculation. 4. Review the specialist's opinion to ensure that it fully complies with the requests in this remand. If the opinion is deficient in any manner, take immediate corrective action. 5. Then, readjudicate the claim for service connection for the cause of death. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2012). _________________________________________________ MICHAEL D. LYON 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) (2012).