Citation Nr: 1315032 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-22 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to October 1983. He died in October 2006 and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2010 the appellant testified at a videoconference hearing before the Board. A transcript of the proceeding has been associated with the claims file. In a March 2012 decision, the Board denied the appellant's claim of entitlement to for the cause of the Veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated September 24, 2012, granted the motion and remanded the case to the Board. 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 Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002); see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). To warrant service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or otherwise be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). Where there are primary causes of death that by their nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, it would generally not be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2012). In furtherance of attempting to substantiate the claim in this case, the RO sought a medical opinion on the cause of the Veteran's death. The opinion was particularly sought to address the relationship, if any, between the development of chronic obstructive pulmonary disease (COPD) and the Veteran's asbestos exposure in service, where he served as a General Motors Diesel Engine Technician, and whether COPD contributed materially and substantially to cause his death in October 2006. Notably, a November 2008 amended death certificate listed COPD as a significant condition that contributed to his death. In October 2009, an opinion was obtained and associated with the claims file. The examiner opined that the Veteran's death from "[p]ulmonary embolism, metastatic adenocarcinoma," was less likely than not permanently aggravated or a result of asbestos exposure and that his death was "at least as likely as not a result of metastatic adenocarcinoma of the colon." He further related that "[t]he record showed metastatic disease to the lung and liver." With respect to the actual question posed regarding COPD, the examiner concluded that COPD was less likely than not "permanently aggravated or a result of asbestos exposure aboard ship in the Navy," but was rather "at least as likely as not a result of unrelated factors." The examiner did not provide any rationale, to include as to any unrelated factors. In September 2012, the parties filed the aforementioned JMR. In the JMR, the parties took issue with the October 2009 VA opinion. They particularly noted that in the opinion the examiner did not define to what unrelated factors the Veteran's COPD was related. In addition, they outlined that the opinion did not address whether presumed exposure to Agent Orange/herbicides played a role in this regard. As such, the Court entered the aforementioned Order. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the Court found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Pursuant to 38 C.F.R. § 4.2 (2012), it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. In regard to potential Agent Orange exposure, the Board notes that a review of the Veteran's personnel records does not indicate that he served in Vietnam. Indeed, a review of his personnel records does not document that he ever served on a ship that is considered to have been exposed to Agent Orange/herbicides. See Agent Orange: Alphabetized Ships List, available at http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp. Likewise, the appellant has indicated that the Veteran had no exposure to Agent Orange. See appellant's July 2008 Substantive Appeal. Thus, regardless of the perceived inadequacy of the October 2009 opinion, further development in this regard is not warranted. Barr, supra. Nevertheless, as the JMR points out, the October 2009 opinion is insufficient in that it does not provide any rationale for the examiner's conclusions. Thus, the opinion must be returned for an addendum report. 38 C.F.R. § 4.2 (2012). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner that offered the October 2009 opinion. If the October 2009 VA examiner is not available, the claims file must be available to another appropriate health care provider. After a review of the claims file, the author of the October 2009 VA opinion or other health care provider MUST respond to the following questions and provide a full statement of the basis for the conclusion(s) reached: Is it as least as likely as not (a 50 percent or greater possibility) that the Veteran's cause of death (pulmonary embolism, metastatic colon cancer) is attributable to his exposure to asbestos in service? If the answer is "no," is it at least as likely as not (a 50 percent or greater possibility) that COPD is attributable to exposure to asbestos in service and, if so, is it at least as likely as not that COPD contributed materially and substantially to cause the Veteran's death? The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. All opinions must be accompanied by a complete rationale. If the October 2009 VA examiner, or other health care provider, is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2012). _________________________________________________ LANA K. JENG 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) (2012).