Citation Nr: 18143734 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-11 550A DATE: October 22, 2018 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from January 1972 to January 1992. In June 2013, the Veteran’s passed away; his death certificate identifies Esophageal Cancer as the cause. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. In July 2013, the Appellant submitted her VA Form 21-534EZ. Therein, the Appellant initiated her claim for service connection for the cause of the Veteran’s death in June 2013. Service connection may be granted for the cause of the Veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312 (2017). A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C. § 1310 (West 2014); 38 C.F.R. § 3.312 (2017). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to 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 it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c). In July 2013, VA received correspondence from an attorney. Therein, the attorney reported that her expert physician had reviewed the Veteran’s chest x-ray and diagnosed mild Asbestosis. Additionally, after review of the Veteran’s CT scan, the attorney’s medical expert identified Pleural Disease. The attorney’s correspondence was accompanied by the Veteran’s treatment notations, which were generated by Dr. Engstrom and Dr. Patel. Importantly, the correspondence did not identify the etiology of the Veteran’s terminal esophageal cancer. In April 2015, the Appellant submitted a VA Form 21-4138. Therein, the Appellant posited that the Veteran served in multiple military campaigns, to include Operation Desert Storm. The Appellant also posited that, “(h)e was also exposed to an extreme amount of fumes and poisonous gases during Desert Storm. He told me how they burned tires, brakes shoes, human feces, insulation and everything imaginable. He told me how it was such a putrid smell and would choke him. The doctors discovered he had been exposed to asbestos when they took x-rays because he had recently been diagnosed with esophageal cancer.” In June 2015, the Veteran’s certificate of release from active duty (DD214) was associated with his claims file. Important to the Appellant’s claim, the Board notes that the Veteran completed 6 years and 3 months of foreign service. However, the Veteran’s DD214 does not reflect that he was the recipient of any campaign ribbons, to include Operation Desert Storm. In July 2015, the National Archives and Records Administration (NARA) supplied the Veteran’s military personnel records. Important to the Appellant’s claim, the NARA report notes that the Veteran was a part of the European Command (Germany) from November 1988 to November 1991. However, the NARA report does not reveal that the Veteran received any campaign ribbons, to include during Operation Desert Storm. In August 2015, VA Form 21-2507a was associated with the Veteran’s electronic claims file. Therein, the was exposed to asbestos during service was conceded based on the Veteran’s military occupational specialty. In August 2015, a VA provider reviewed the entirety of the Veteran’s claim file and medical treatment notations. In the resultant report, Dr. WJT addressed the Veteran’s conceded in-service exposure to asbestos. Within the report, Dr. WJT noted that, “(a)sbestos exposure is not indicative of asbestosis.” Also, Dr. WJT confirmed that, “(d)eath certificate does not indicate asbestosis was a contributory cause of this Veteran's death.” Relevant to the Appellant’s claim, Dr. WJT posited that, “(a)sbestos exposure and asbestosis is not an etiological risk factor associated with the development of esophageal cancer.” Despite the relative clarity of the report, Dr. WJT opined that, “(t)he majority of evidence indicates that it is not at least as likely as not the Veteran’s death was substantially and/or materially caused by, related to, or a result of in-service asbestos exposure or if it was a contributory factor in his death.” The Board finds that clarification is needed on whether his conceded in-service asbestos exposure contributed to the Veteran’s death. Also, the Board observes that Dr. WJT did not have an opportunity to consider and/or address any medically accepted relationship between esophageal cancer and exposure to burn pits (and their byproducts). In April 2018, the Veteran’s representative submitted VA Form 646. Therein, the Appellant’s contention was reiterated: “It is her contention that her husband’s esophageal cancer was caused by exposure to asbestos and the hazardous air quality of the Middle East during his Desert Storm deployment.” In April 2018, the Appellant supplied sworn testimony to the undersigned Veteran’s Law Judge (VLJ), via videoconference technology. At that time, the Appellant averred that, “I noticed his heartburn started getting worse and worse, he started getting more GERD, and I seriously, seriously believe that it was due to being in Desert Storm, the burn pits . . ..” Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board notes that while the Appellant is competent to testify about the symptoms she observed during the course of the Veteran’s disorder, she is not competent to identify the etiology for her late-husband’s esophageal cancer. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009)(citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)). In May 2018, VA received correspondence from the Colloum & Carney clinic. Therein, RN Smith and Dr. Graves commented on the deceased Veteran’s treatment history in New Boston, Texas. Therein, the providers revealed a treatment history that included yearly contact with Veteran prior to his passage. The providers reported no family history for esophageal cancer. Ultimately, the providers opined that, “(w)e believe that there is a good possibility that (the Veteran’s) metastatic adenocarcinoma of the distal esophagus could be related to frequent and constant inhalation of fumes from these burn pits that he endured during his service in Desert Storm.” The Board observes that RN Smith and Dr. Graves did not utilizing the applicable preponderance of the evidence standard. The Board also observes that the claims file does not support that the Veteran served during Operation Desert Storm and/or in any theater of military operation. Therefore, it is unclear whether the Veteran endured any burn pit byproducts that were generated during Operation Desert Storm. Because RN Smith and Dr. Graves may have utilized inaccurate facts, their commentary may have little or no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Upon review of the record, the Board concludes that further evidentiary development is necessary. On remand, the Agency of Original Jurisdiction (AOJ) should obtain a medical opinion from an appropriate medical examiner to determine whether the Veteran’s listed cause of death, Esophageal Cancer, was related to his active duty Army service. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Appellant with appropriate assistance in developing her claim prior to final adjudication. The matter is REMANDED to the AOJ for the following action: 1. The AOJ should ask the Appellant to identify any outstanding relevant treatment records, private and government-held, regarding the Veteran’s esophageal cancer. The AOJ should undertake appropriate development to obtain all outstanding pertinent treatment records. The Appellant's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the Veteran's treatment records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Appellant and her agent of the status of the Veteran's records, and give the Appellant the opportunity to obtain the Veteran's records on her own. 2. The AOJ must contact the Joint Services Records Research Center (JSRRC), or another appropriate entity, to determine and/or verify whether the Veteran was mobilized and/or deployed in support of Operation Desert Storm. Regardless of whether the Veteran was mobilized and/or deployed in conjunction with Operation Desert Storm activities, the reporting entity is asked to identify and address any known burning of wastes in and around the Veteran’s duty station during the Operation Desert Storm time period. The AOJ is informed that this includes, if necessary, submitting multiple requests to the JSRRC or another appropriate entity. 3. After the above development has been completed, and after all records obtained have been associated with the evidentiary record, the AOJ should obtain a medical opinion from a physician examiner with appropriate expertise to determine the nature and etiology of the cause of the Veteran's death. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by, the physician. The medical opinion must include a notation that this record review took place. After reviewing the evidentiary record, the examiner is asked to opine on whether: a.) It is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cause of death is related to the Veteran's military service? b.) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cause of death is related to conceded asbestos exposure? c.) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cause of death is related to any opening burning of wastes during the Operation Desert Storm era, which will be addressed by the appropriate entity (above)? The complete rationale for any opinion should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Appellant is competent to report the Veteran's symptoms and history prior to his death. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Appellant's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 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 the claim of entitlement to service connection for the cause of the Veteran's death remains denied, provide the   Appellant and her representative with a supplemental statement of the case, and return the case to the Board DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel