Citation Nr: 1701068 Decision Date: 01/13/17 Archive Date: 01/27/17 DOCKET NO. 10-34 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1979 and from August 1979 to September 2005. He died in February 2009. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2016, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). After receiving the completed VHA medical opinion in August 2016, the appellant and her representative had an opportunity to comment upon the VHA opinion and to offer argument and additional evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's review of the record reveals that further development on this matter is warranted. In written statements of record, the appellant has contended that the Veteran's fatal disorder, lung cancer, was casually related to his asbestos exposure during active service. The appellant has also continually asserted that the Veteran's service-connected lumbar and cervical spine disabilities were a contributory cause of his death. She argued that his service-connected lumbar and cervical spine disabilities masked early detection and diagnosis of lung cancer, as the Veteran assumed he was just experiencing a reoccurrence of prior back symptomatology. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. 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 etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312 (b), (c). There is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section I. 3. a-f.; see also Ennis v. Brown, 4 Vet. App, 523, 527 (1993) (finding that VA must analyze an appellant's claim seeking entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines). M21-1 provides that inhalation of asbestos fibers can produce fibrosis and tumors, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce lung cancer. Thus, persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. See M21-1, Part IV, Subpart ii, Chapter 1, Section I. 3. a-f. Medical nexus evidence is required in claims for asbestos-related diseases linked to alleged in-service asbestos exposure. VAOPGCPREC 4-00; 65 Fed. Reg. 33,422 (2000). In short, with respect to claims involving asbestos exposure, VA must determine whether the Veteran's military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part IV, Subpart ii, Chapter 1, Section I. 3. a-f. The Board notes that M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Veteran died in February 2009 at the age of 51 years. The Certificate of Death listed the immediate cause of his death as metastatic non-small cell lung carcinoma. At the time of the Veteran's death, service connection was established for lumbar degenerative spondylosis, rated as 10 percent disabling; cervical spine degenerative disc disease, rated as 10 percent disabling; and hypertension as well as left foot plantar wart, each rated as noncompensable (zero percent) disabling. Service treatment records are void of any treatment for lung cancer. Service personnel records showed the Veteran had several sea service deployments with nearly seven years of sea service. The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was Staff Operations and Plans Officer, Air Traffic Control Officer, and Radar Air Traffic Control Center Officer. Evidence of record further detailed that the AOJ has determined that the Veteran's MOS as an Air Traffic Control Officer was associated with minimal exposure to asbestos. See M21-1, Part IV, Subpart ii, Chapter 1, Section I. Post-service private treatment records dated from 2006 to 2009 detailed treatment for abnormal chest X-ray, right arm and mid back pain, metastatic lung carcinoma, Stage IV non-small cell lung cancer with multiple bone mets, fusion of C5 and C6 secondary to degenerative disc disease, and multilevel mild degenerative disc disease in the mid thoracic region. The Veteran was noted to smoke cigarettes, 1/2 to 1 pack per day for 30 years. In November 2006, the Veteran complained about left back pain located in most of the upper lumbar area. He stated he had the same episode of pain about one year before. In an April 2010 private medical opinion, D.L.M., M.D., indicated that in reviewing his past history, the Veteran did have exposure to asbestos as a result of his military service. He then opined that it was at least likely as not that asbestos exposure contributed to the Veteran's death from non-small cell lung cancer. In a September 2015 VA medical opinion, the examiner, after discussing his review of the claims file, opined that the claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale, the examiner stated that the Veteran's metastatic non-small cell lung carcinoma was less likely as not (less than 50% probability) due to asbestos exposure in service. It was noted that review of records showed no history of prolonged or significant exposure to asbestos as well as no history of lung cancer while in service, nor chronic or persistent pulmonary conditions. The examiner commented that the claimed lung cancer was more common in people with high exposure conditions involved in the mining of/or manufacture of asbestos containing products. The examiner concluded that the contention that the Veteran's cancer was caused by asbestos could not be made without resort to speculation. In an August 2016 VHA opinion, the physician, a specialist in Pulmonary and Critical Care Medicine, indicated that asbestos exposure has been proposed as a mechanism that can significantly increase the risk of lung cancer, including non-small cell lung cancer. It was noted that factors to consider when determining risk of lung cancer associated with asbestos exposure included cumulative dose of exposure, type of asbestos fiber, and associated tobacco abuse. The physician commented that attempting to attribute lung cancer to asbestos exposure in a smoker is complicated by several factors. It was indicated that the Veteran was clearly at an increased risk of lung cancer due to his history of smoking. The physician concluded that he was unable to determine if asbestos was as least as likely as not to have contributed to the Veteran's lung cancer without additional information, including any CT scan images of the Veteran's lungs, the type of fiber to which the Veteran was exposed, a more precise estimation of his cumulative dose of asbestos, and pathologic quantification of asbestos per centimeter of lung tissue. The Board's review of the record reveals that further development on this matter is warranted. For instance, none of the treatment providers of record discussed the appellant's contention that the Veteran's service-connected lumbar spine and cervical spine disabilities were a contributory cause of his death. In light of the cumulative record, VA must obtain an additional medical opinion to clarify the etiology of the cause of the Veteran's death. 38 U.S.C.A. § 5103A(a) (West 2014); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). Accordingly, the case is REMANDED for the following actions: 1. The AOJ must contact the appellant and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim for entitlement to service connection for the cause of the Veteran's death that has not already been associated with the electronic claims file. In particular, the appellant should send copies of or should inform the AOJ where to request any available CT scan images of the Veteran's lungs. All attempts to obtain these records must be documented in the claims file. The appellant and her representative must be notified of any inability to obtain the requested documents and then be given an opportunity to respond. 2. Thereafter, the AOJ must obtain a VA medical opinion as to whether any disability incurred in or aggravated by active military service was the principal or contributory cause of death. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the record, and with consideration of the appellant's statements, the examiner must state whether the Veteran's lung cancer diagnosed post-service, which was identified as the cause of the Veteran's death, was related to events during his military service or any incident therein, to include asbestos exposure. The examiner is asked to discuss the more likely cause of the Veteran's lung cancer, minimal exposure to asbestos during service versus a 30 year smoking history of 1/2 to 1 pack per day. The examiner should also opine as to whether asbestos exposure in service substantially and materially contributed to the cause of the Veteran's death. In other words, even if smoking was the primary cause of the death, the examiner should comment as to the likelihood that the asbestos exposure in service substantially and materially contributed to death. The Board also highlights that much of the requested evidence referenced by the August 2016 VHA examiner, such as the type of fiber to which the Veteran was exposed, a more precise estimation of his cumulative dose of asbestos, and pathologic quantification of asbestos per centimeter of lung tissue, is simply unavailable. The examiner must also provide an opinion as to whether the Veteran's service-connected lumbar degenerative spondylosis and/or cervical spine degenerative disc disease either caused or substantially and materially contributed to the cause of the Veteran's death. The examiner is asked to specifically discuss the appellant's assertions that the Veteran's service-connected lumbar and cervical spine disabilities masked early detection and diagnosis of lung cancer, as the Veteran assumed he was just experiencing a reoccurrence of prior back symptomatology. In giving the requested opinions, the examiner must acknowledge and discuss the findings in the April 2010 private medical opinion from D.L.M., M.D., the September 2015 VA medical opinion, and the August 2016 VHA medical opinion of record, as well as the lay statements from the appellant. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ must review the record to ensure that the foregoing requested development has been completed. In particular, review any VA medical opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. 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 AOJ 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 she has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate 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 2014). _________________________________________________ MICHAEL MARTIN 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) (2016).