Citation Nr: 1612435 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 10-39 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to October 1980. He died in October 2007 and the appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in March 2014 at which time it was remanded for additional development. It is now returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran died in October 2007. The death certificate lists the immediate cause of death as metastatic lung cancer. The appellant claims that an in-service exposure to aqueous film forming foam (AFFF) caused or contributed to the Veteran's death. See 38 C.F.R. § 3.312 (entitlement to service connection for cause of death warranted when a disability related to service caused or contributed substantially or materially to the Veteran's death). The appellant submitted an August 1978 letter of appreciation that indicated that the Veteran was onboard the U.S.S. Forrestal in July 1978 when an accidental activation of a firefighting/countermeasure system occurred. This resulted in highly corrosive AFFF to cover the ship. The letter further indicated that the Veteran provided assistance in preventing the AFFF from causing corrosive damage to the ship. Service treatment records do not contain any reference to an in-service injury related to the incident. The Veteran's separation examination in October 1980 reflects that the Veteran's lungs and chest were normal. A February 1992 VA treatment record and August 1993 private treatment record noted that the Veteran smoked a pack of cigarettes a day and other records reference the Veteran's smoking history. In June 2008, the appellant submitted a June 2008 newspaper article that documents concerns regarding the medical effects of fire-suppression chemicals used in the military. Specifically, the article indicated that a high exposure to hydrogen fluoride released from fire-suppression systems could be harmful or fatal due to irregular heartbeat or fluid buildup in the lungs. The Federal Circuit has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is "necessary to substantiate the claim," and VA is excused from providing such assistance only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. Given that there is evidence of a possible relationship between the Veteran's death from metastatic lung cancer and an in-service exposure to AFFF, a medical opinion is necessary to substantiate the claim. Moreover, it cannot be said that there is no reasonable possibility that such assistance would aid in substantiating the claim; rather, as the Board has found, there is competent evidence of in-service exposure to AFFF, a medical opinion indicating that it is at least as likely as not that the Veteran's metastatic lung cancer was related to the in-service exposure to AFFF would aid in substantiating the claim for service connection for the cause of the Veteran's death. A remand is therefore warranted to obtain an opinion from an appropriate specialist on this question. In addition, the appellant indicated that the Veteran received treatment at the VAMC in Houston and Conroe, Texas, as well as in St. Petersburg, Florida. These VA treatments records have not been associated with the claims file. The AOJ should therefore attempt to obtain these records. Also, a February 2008 letter from Dr. A indicated that the Veteran received treatment related to his metastatic disease from November 2006 to November 2007. As these treatment records are relevant to the current claim at issue, the AOJ should attempt to obtain these records. Finally, records note that the Veteran was awarded disability benefits from the Social Security Administration in May 1991. As the matter is being remanded, the Veteran's records relied upon in awarding him Social Security benefits should be requested on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records including those from the VAMCs in Houston and Conroe, Texas and St. Petersburg, Florida from the 1990s. If any records cannot be obtained, take action in accordance with 38 C.F.R. § 3.159(e). 2. With any necessary assistance from the appellant, obtain records of private treatment from Dr. A. 3. Request from Social Security Administration copies of all medical records underlying the award of disability benefits. 4. Request an opinion from an appropriate specialist VA physician as to the etiology of the Veteran's death. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that an in-service incurrence or injury contributed substantially or materially to the Veteran's death from lung cancer. A complete rationale should accompany any opinion provided. In formulating the requested opinion, the physician should address the newspaper article submitted in June 2008 that documents concerns regarding the medical effects of fire-suppression chemicals used in the military and the fact that the Veteran was exposed to similar chemicals during service. The physician should also address the Veteran's smoking history. The physician is advised that the Veteran was and the appellant and any other lay witnesses are competent to report symptoms and treatment, and that these reports must be taken into account in formulating the requested opinion. 5. After the above development has been completed, readjudicate the claim of entitlement to service connection for the cause of the Veteran's death. If any benefit sought on appeal remains denied, furnish the appellant and her representative a supplemental statement of the case and return the case to the Board. 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 2014). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).