Citation Nr: 18149096 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 794 DATE: November 8, 2018 REMAND Entitlement to service connection for lung cancer for accrued benefits purposes is remanded. Entitlement to service connection for pancreatic cancer for accrued benefits purposes is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to September 1974, from June 1992 to September 1992, from December 2002 to July 2004, from June 2005 to January 2006, and from April 2006 to September 2007. The Veteran died in April 2015, and the Appellant is his son. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant filed a timely notice of disagreement in May 2016 and a statement of the case was issued in July 2016. The Appellant filed a VA Form-9 in August 2016 and elected not to have an optional Board hearing. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for pancreatic cancer is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. The record reflects that in May 2015, the Appellant filed a motion to be substituted in the pending claims for service connection for lung cancer and pancreatic cancer. It is the responsibility of the RO and not the Board to determine whether a particular claimant is eligible for substitution. See 38 C.F.R. § 3.1010 (e) ("The agency of original jurisdiction will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board of Veterans' Appeals."). The Veteran’s death certificate reads that the cause of his death was 1) non-small cell carcinoma of lung, TNM stage 4, and 2) mass of pancreas, positive CA 19-9. See April 2015 death certificate. The theory of entitlement underlying the cause of death claim is the same as the theory of entitlement underlying the service connection claims. The Board has reviewed the Appellant’s arguments, including those set forth in the May 2016 notice of disagreement and the August 2016 VA Form 9. The Board finds that another VA opinion should be obtained. The matters are REMANDED for the following action: 1. Adjudicate whether the Appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the claims for service connection for lung cancer and pancreatic cancer to completion. See May 2015 motion. Associate with the file the determination regarding the Appellant's request for substitution. 2. Obtain an addendum opinion by an oncologist (M.D.), pulmonologist (M.D.), or thoracic surgeon (M.D.) regarding the nature and etiology of the Veteran's lung cancer claim. The file must be provided to and reviewed by the physician. The physician is requested to provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lung cancer is etiologically related to exposure to burn pits and particulate matter during his service in the Persian Gulf. In so opining, the physician is requested to do the following: (a) Review the entire April 2016 VA examination report. (b) Review the Veteran’s Affidavit (received in February 2015) in which he details the exposures he encountered during his service in Iraq. (c) As noted in the April 2016 examination report, while “DoD has indicated that most of the air samples have not shown individual chemicals that exceed military exposure guidelines (MEG). . . . DoD further concluded that the confidence level in their risk estimates is low to medium due to lack of specific exposure information, other routes/sources of environmental hazards not identified; and uncertainty regarding the synergistic impact of multiple chemicals present, particularly those affecting the same body organs/systems.” Thus, the physician is asked for purposes of this opinion to accept as fact that the Veteran was exposed to burn pits and particulate matter in the manner and frequency as detailed by the Veteran in his Affidavit. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Obtain an addendum opinion by an oncologist (M.D.) or gastroenterologist (M.D.) regarding the nature and etiology of the Veteran's pancreatic cancer claim. The file must be provided to and reviewed by the physician. The physician is requested to provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s pancreatic cancer is etiologically related to exposure to burn pits and particulate matter during his service in the Persian Gulf. In so opining, the physician is requested to do the following: (a) Review the entire April 2016 VA examination report. (b) Review the Veteran’s Affidavit (received in February 2015) in which he details the exposures he encountered during his service in Iraq. (c) As noted in the April 2016 examination report, while “DoD has indicated that most of the air samples have not shown individual chemicals that exceed military exposure guidelines (MEG). . . . DoD further concluded that the confidence level in their risk estimates is low to medium due to lack of specific exposure information, other routes/sources of environmental hazards not identified; and uncertainty regarding the synergistic impact of multiple chemicals present, particularly those affecting the same body organs/systems.” Thus, the physician is asked for purposes of this opinion to accept as fact that the Veteran was exposed to burn pits and particulate matter in the manner and frequency as detailed by the Veteran in his Affidavit. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel