Citation Nr: 1801689 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-10 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Pension Management Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Mary M. Long, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to September 1960 and from June 1962 to January 1966. He died in March 2007. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota. The appellant testified at a hearing before an RO Hearing Officer in August 2016. A hearing transcript is of record. The record reflects that in March 2016, the appellant withdrew a request to appear for Board hearing. See 38 C.F.R. § 20.704(e) (2017). Issues of entitlement to service connection for bilateral hearing loss and tinnitus, for accrued benefits purposes, and entitlement to nonservice-connected death pension benefits have been perfected, but have not yet been certified to the Board. During the RO hearing, the appellant's attorney indicated that the focus of the appeal was on the cause of death issue and not accrued benefits or pension. Thus, the Board will defer consideration of these issues at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on her part. REMAND The Veteran died in March 2007. The immediate cause of death recorded on his death certificate was metastatic carcinoma of the lung. The appellant has asserted that the Veteran was exposed to cleaning chemicals, including carbon tetrachloride, trichloroethylene, cis-1,2-dichloroethene, and vinyl chloride, as a result of his duties as a mechanical and electrical equipment repairmen, which reportedly involved the use of such chemicals to repair and clean teletypewriter machines and other mechanical equipment, and as a result of exposure to chemicals used to maintain rockets and clean fuel lines. She has further asserted that such exposure to harmful chemicals directly led to the development of the Veteran's lung cancer. VA obtained an opinion with respect to the cause of the Veteran's death in November 2016. The VA physician noted the possible effects of chemical the Veteran may have been exposed to as well as the possible effect of the Veteran's history of cigarette smoking. The physician concluded that it would require mere speculation to try to determine that the Veteran's lung cancer was caused by, chronically aggravated by, or substantially or materially caused or hastened by the possible and unknown exposure to vinyl chloride versus the 55 pack year smoking history of this veteran. Notably, however, the physician's opinion appears to reflect a belief that a definitive causation standard is required in order to establish an etiological relationship between the Veteran's apparent in-service exposure to cleaning chemicals and his subsequent development of lung cancer. The Board note, however, that the applicable standard is an at least as likely as not proposition. Moreover, to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In the instant case, although the physician alluded to competing possible causative factors for the Veteran's lung cancer, she did not provide any indication of what facts could not be determined or whether additional testing or information could be obtained that would lead to a more conclusive opinion. See id. Accordingly, remand is required in order to obtain an adequate medical opinion with respect to the Veteran's cause of death. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The record reflects that the Veteran was in receipt of Social Security Administration (SSA) disability benefits during his lifetime. To date, however, a copy of his SSA records has not been associated with the claims file. As these records are potentially relevant, they should be obtained. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) ("The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help substantiate a claim for benefits, the duty to assist requires VA to obtain the records"). Additionally, a March 2007 VA treatment report indicated that the Veteran died while in hospice care. A copy of his terminal treatment records, to include any available records from the treating hospice facility, has not been associated with the claims file. These records should therefore also be sought on remand. See 38 C.F.R. § 3.159(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain all available decisions and underlying documents considered in those decisions with regard to the Veteran's application(s) for SSA disability benefits. 2. After obtaining any necessary authorization from the appellant, obtain the Veteran's terminal treatment records, to include any available records from the hospice facility that was treating the Veteran at the time of his death. 3. Then, request an opinion from an appropriate specialist physician. The physician should review the claims file. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lung cancer, which ultimately caused his death, had its onset during active service or is related to any in-service disease, event, or injury, to include reported exposure to carbon tetrachloride, trichloroethylene, cis-1,2-dichloroethene, and/or vinyl chloride. For purposes of providing this opinion, the physician should presume that the Veteran was exposed to these chemicals as has been contended. The physician must provide reasons for all opinions and conclusions reached, to include addressing relevant lay contentions. The physician should note that a conclusion that an etiology opinion is speculative is disfavored and a definitive opinion is not required. 4. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order. 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 remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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) (2017).