Citation Nr: 20003718 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 17-51 439 DATE: January 15, 2020 REMANDED The issue of entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to August 1973 and from February 1975 to June 1995. The Veteran passed away in March 2008. The Appellant is his surviving spouse. In November 2019, the Appellant testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the claims file. 1. The issue of entitlement to service connection for cause of death is remanded. During the November 2019 videoconference hearing, the Appellant advanced three separate theories of entitlement. First, she asserted the Veteran developed lung cancer as a result of his exposure to herbicide agents in-service. Alternatively, she claimed a spot on his lung was observed in-service, which was related to his development of lung cancer; and/or he had an acquired psychiatric disability in-service which led to self-medication with alcohol and tobacco, which in turn resulted in his development of lung cancer. A review of the Veteran’s service treatment records (STRs) confirms he received psychiatric treatment in-service and was noted to be a smoker as well as a habitual excessive drinker. In support of her contention, the Appellant previously submitted a positive nexus opinion from Dr. J.W.E. In an October 2015 letter, Dr. J.W.E. identified multiple respiratory conditions, which he opined more likely than not contributed to the Veteran’s development of lung cancer. These diagnoses included, constrictive lung disease, which was the disability accepted by the VA; chronic bronchitis; asthma; emphysema; and chronic obstructive lung disease. In rendering this opinion, Dr. J.W.E. did not provide any supporting rationale. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Additionally, Dr. J.W.E. opined that it was more likely than not the Veteran was exposed to herbicide agents in-service which made him more susceptible to developing lung cancer. Unfortunately, the Regional Office has been unable to verify the Veteran’s exposure to herbicide agents in-service and Dr. J.W.E.’s finding of exposure to herbicide agents in-service was based on the Appellant’s lay reports alone. In furtherance of this claim, the Regional Office obtained a medical opinion in April 2008. Following a review of the record, the VA examiner determined there was no evidence the Veteran’s service-connected lung disease was materially related to his death due to large-cell carcinoma, that it in any way contributed to his development of large-cell carcinoma or rendered him incapable of resisting the effects thereof. In doing so, the VA examiner did not have an opportunity to address the contentions raised during the November 2019 videoconference hearing. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Considering the above, a remand is necessary to obtain another addendum VA medical opinion. The matters are REMANDED for the following action: 1. Contact the Appellant to determine if there are any relevant, outstanding private treatment records. If so, undertake all appropriate development necessary to obtain the records from each private treatment provider and/or facility identified by her. 2. Once the first request has been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional to determine whether the Veteran’s service-connected constrictive lung disease, contributed substantially or materially to his death due to large-cell carcinoma. After reviewing the record, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s service-connected constrictive lung disease contributed substantially or materially to his death due to large-cell carcinoma and explain why. (b.) If the Veteran’s service-connected constrictive lung disease did not contribute substantially or materially to his death due to large-cell carcinoma, opine as to whether it is at least as likely as not (50 percent probability or greater) he had any other lung condition in-service, to include a spot on his lung, which contributed substantially or materially to his death due to large-cell carcinoma and explain why. (c.) If the Veteran did not have any other lung condition in-service which contributed substantially or materially to his death due to large-cell carcinoma, opine as to whether it is at least as likely as not (50 percent probability or greater) his alcohol consumption and/or tobacco use in-service was proximately due, to include self-medication, for an acquired psychiatric disability in-service. If so, opine as to whether it is at least as likely as not (50 percent probability or greater) his alcohol consumption and/or tobacco use contributed substantially or materially to his death due to large-cell carcinoma and explain why. (d.) In rendering an opinion, the examiner should consider the Veteran’s relevant STRs documenting he received psychiatric treatment in-service, smoked between one to two packs a day and was a habitual excessive drinker in-service. (e.) In rendering an opinion, the examiner should also consider the positive nexus opinion from Dr. J.W.E. in an October 2015 letter. (f.) In rendering an opinion, the examiner should also consider the Appellant’s lay statements of record, to include her testimony during the November 2019 Board videoconference hearing. 3. Once the above requests have been completed, to the extent possible, readjudicate the appeal. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Suh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.