Citation Nr: 1606524 Decision Date: 02/22/16 Archive Date: 03/01/16 DOCKET NO. 14-24 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to May 1971. The Veteran died in April 2012 and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 administrative decision by the Department of Veterans Affairs (VA) Regional Office and Pension Center (RO) in St. Paul, Minnesota. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant asserts that her late husband's death resulted from asbestos exposure during service. In the alternative, she asserts that her late husband's death resulted from exposure to herbicides during service in the Republic of Vietnam. The Veteran's certificate of death shows that the immediate cause of death was chronic obstructive pulmonary disorder (COPD), and that the interval between the onset of the COPD and his death was "years." The certificate of death does not list any other causes or contributory causes of death. The Veteran's post-service medical treatment records date from 2007 through 2010, and show that the Veteran was diagnosed with chronic obstructive pulmonary disorder based on chest x-ray findings as well as pleural effusion. These findings also show a diagnosis of asbestosis per a CAT scan, and masses in the lower lobes with a possible bronchiogenic carcinoma. See private radiology reports dated August 2007, April 2009, and July 2010. VA obtained a medical opinion in March 2014. The examiner noted that the Veteran had a diagnosis of severe COPD which is almost always due to a history of tobacco abuse. The examiner also indicated that there are no medical records available identifying how long and how much the veteran smoked, but noted that COPD is an OBSTRUCTIVE lung process, while asbestos exposure causes a RESTRICTIVE lung process. Based on this rationale, the examiner opined that that asbestos exposure did not cause or contribute to the Veteran's COPD, and that his COPD was more likely as not a result of cigarette smoking. In response to this opinion, the appellant reported, in correspondence dated May 2015, that her late husband had quit smoking in 1998, which was nine years prior to his COPD diagnosis. Because the March 2014 medical opinion was based on an incomplete record, another opinion is necessary to decide the claim. Moreover, the examiner based her opinion on the fact that the Veteran had a COPD diagnosis, but did not consider the asbestosis diagnosis in conjunction with his service aboard a Navy vessel; or, the evidence of interstitial fibrosis or the pleural effusion noted on x-ray. Further, the Veteran's representative submitted internet articles suggesting that while the main cause for COPD is smoking, environmental toxins like pollution, chemical fumes or exposure to asbestos and other toxic workplace dust can also trigger the disease. Finally, in May 2015 correspondence, the Veteran's representative suggests that the Veteran had service in the Republic of Vietnam, and the aforementioned private treatment records suggest that the Veteran may have had bronchogenic carcinoma. Given the possibility of boots on the ground in Vietnam during the Vietnam era coupled with the possibility of cancer of the lung, another VA opinion is necessary to determine if the Veteran's cause of death included primary lung cancer, one of the diseases for which service connection is presumed for Veterans who served in Vietnam during the Vietnam era. Finally, the current record does not any medical records dated from 2011 until his death in April 2012. As such, the appellant should be requested to identify any outstanding treatment records and provide proper authorization to obtain them. Any VA generated medical records should also be obtained and associated with the record. Accordingly, the case is REMANDED for the following action: 1. Request that the appellant provide records of or identify any sources of treatment for lung disorders after the Veteran's discharge from active service. If proper authorization is provided, obtain and associate with the record all pertinent treatment records, including but not limited to those dated from 2011 through April 2012. 2. Request any outstanding personnel records (i.e., request a complete copy of the Veteran's official military personnel folder) and service treatment records pertaining to the Veteran's service from July 1952 to May 1971, to include any records from periods in the Navy Reserves until 1981. 3. After completion of the above directives, obtain a medical opinion from a pulmonologist who can accurately interpret the x-ray and CAT scan findings from 2007 through 2010 as summarized above, as well as adequately analyze any additional medical evidence associated with the record pursuant to this remand. In so doing, the examiner is asked to respond to the following questions: a. Is it as likely as not (probability of 50 percent or greater) that the Veteran had asbestos-related lung disease or lung cancer and, if so, did such disorder cause or contribute to death (i.e., did it contribute substantially or materially; combine to cause death; aid or lend assistance to production of death)? b. If the clinician opines that a disorder other than COPD caused or contributed to death, the clinician should opine as to whether such other disorder was, as likely as not, related to some incident of service, such as asbestos exposure and/or reported in-service herbicide exposure. c. If the examiner opines that the Veteran's COPD was the only cause of death, then the examiner should opine as to whether it is at least as likely as not that the Veteran's COPD is related to any incident of service, including asbestos exposure and/or reported in-service herbicide exposure. The clinician's attention is directed to a diagnosis of asbestosis per a CAT scan, and masses in the lower lobes with a possible bronchiogenic carcinoma. See private radiology reports dated August 2007, April 2009, and July 2010. The clinician's attention is also directed to the internet articles submitted by the representative in May 2015 suggesting that while the main cause for COPD is smoking, environmental toxins like pollution, chemical fumes or exposure to asbestos and other toxic workplace dust can also trigger the disease. The clinician's attention is also directed to the appellant's report, in correspondence dated May 2015, that her late husband had quit smoking in 1998, which was nine years prior to his COPD diagnosis. A rationale for all opinions is requested. The examiner is also 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. 4. The RO should then take any other development action which is deemed warranted and readjudicate the appellant's claim for entitlement to service connection for the cause of the Veteran's death. If the action taken is adverse to the appellant, she and her representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. She should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ S. S. TOTH 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) (2015).