Citation Nr: 1504975 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 12-18 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to December 1970. He died in September 2010. The appellant in this matter is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the claim resides with the RO in Reno, Nevada. REMAND The appellant seeks service connection for the cause of the Veteran's death. A veteran's death may be service connected if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). The service-connected disability may be either the principal or a contributory cause of death. A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. At the time of his death in September 2010, service connection was not in effect for any disabilities. His death certificate lists his immediate cause of death as respiratory failure and the lists metastatic liposarcoma as an underlying condition that gave rise to the immediate cause of death. The appellant claims that the Veteran developed soft tissue sarcoma from in-service exposure to dangerous chemicals and asbestos and that this eventually led to his death due to respiratory failure. She asserts that the Veteran was exposed to hazardous chemicals during his service in the Navy because he worked on ships, to include the U.S.S. Intrepid, and was around aircrafts. There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). VA has, however, provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. These M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, the manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR IV.ii.2.C.9.h. These guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR IV.ii.2.C.9.d. VA also recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-1MR IV.ii.2.C.9.b. VA's Manual also lists some of the common materials that may contain asbestos, including steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation. M21-1MR IV.ii.2.C.9.a. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. Review of the evidence of record shows that a sufficient attempt to verify whether or not the Veteran was likely exposed to asbestos or hazardous chemicals during his service has not yet been completed. While the RO obtained the Veteran's service personnel records and attempted to verify his claimed asbestos exposure by requesting this information via the Personnel Information Exchange System (PIES), the only response received in November 2010 from this request was "ALL AVAILABLE REQUESTED RECORDS <>." No other efforts have been undertaken to investigate whether the Veteran's duties during service or the locations where he served would have exposed him to hazardous chemicals. Indeed, the available service records do not reflect his military occupational specialty and only shows that he was assigned to a submarine reconnaissance unit. Furthermore, there has been no investigation regarding the source of hazardous exposure claimed by the appellant to have occurred during the Veteran's work on the U.S.S. Intrepid. Thus, the RO must investigate the Veteran's claimed exposure to asbestos and hazardous chemicals, as well as document all steps taken to verify any exposure. In this regard, on a July 2012 VA Form 9, the appellant asserted that she obtained evidence regarding the ships on which the Veteran reportedly worked during service and was exposed to hazardous chemicals. On remand, the RO should request that the appellant submit this information and any additional evidence she believes will substantiate her claim. Efforts must also be made to obtain outstanding VA and private medical records pertinent to the claim. During an October 2014 hearing before the Board, the appellant testified that the Veteran sought treatment for fainting spells, headaches, and nose bleeds near the end of his military service at a hospital in Queens, New York during his service on the U.S.S. Intrepid. She also reported that the Veteran sought treatment for his sinuses following service at Michael O'Callaghan Federal hospital at Nellis Air Force base in approximately 2007 and was told, after undergoing either a magnetic resonance imaging scan or computed axial tomography scan of his head, that he had a rare form of cancer. According to the appellant, the Veteran received treatment for his sarcoma at Summerlin Hospital and Valley Hospital in Las Vegas, Nevada in the late 2000s and additional treatment at the Nevada Cancer Institute. A review of the evidence does not show that the records of any of this private treatment have been obtained. The Veteran is also noted to have received treatment at the VA Medical Center (VAMC) in San Diego, California. However, only three medical records showing treatment at this facility in February 2010 have been obtained. As numerous private and VA medical records remain outstanding, a remand is required in order for the RO to obtain this evidence and associate it with the record. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, there is no medical opinion of record that addresses the relationship, if any, between the cause of the Veteran's death and his military service, to include any hazardous exposures therein. Accordingly, this claim presents certain medical questions concerning medical nexus that cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (finding that 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). Thus, on remand, a VA medical opinion must be obtained that address whether an immediate or underlying cause of the Veteran's death is related to his military service, to include exposure to asbestos or hazardous chemicals. Accordingly, the case is remanded for the following action: 1. The RO must contact the appellant and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim, to include any information regarding the locations of the Veteran's military service, and the name and location of the hospital in Queens, New York where he received treatment prior to his discharge from service. Regardless of the appellant's response, the RO must obtain and associate with the record all outstanding records relevant to the claim on appeal, to include the following: (a) Medical records from Michael O'Callaghan Federal Hospital; (b) Private treatment records from Summerlin hospital in Las Vegas, Nevada; (c) Private treatment records from Valley Hospital in Las Vegas, Nevada; (d) Records of all private medical treatment at the Nevada Cancer Institute; and all VA records from the San Diego VAMC. All attempts to secure this evidence must be documented in the record by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the appellant and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the appellant is ultimately responsible for providing information. The appellant and her representative must then be given an opportunity to respond. 2. The RO must take appropriate action to develop evidence of whether the Veteran was exposed to asbestos or hazardous chemicals during service, to include requesting information from the appropriate resources regarding his military occupational specialty(ies), assigned duties, and locations of service. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29; Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9. 3. Thereafter, the RO must obtain a VA medical opinion from an appropriate physician, preferably with a specialty in oncology, regarding whether the cause of the Veteran's death was etiologically related to his military service. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the medical opinion that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the review of the record, the examiner must provide an opinion and thorough rationale as to whether any of the disorders listed as the Veteran's cause of death (respiratory failure and metastatic liposarcoma) were incurred in or due to his active duty service, to include any in-service exposure to asbestos or hazardous chemicals due to his service aboard military ships/vessels and around aircrafts. In providing this opinion, the examiner must consider the appellant's statements that the Veteran experienced fainting spells, headaches, and nose bleeds prior to his separation from the military. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After the development requested has been completed, the RO must review the medical opinion to ensure that it is in complete compliance with the directives of this Remand. If the medical opinion is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the appellant's claim of entitlement to service connection for the cause of the Veteran's death. If the benefit remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After the appellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the appellant until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).