Citation Nr: 20004345 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 15-27 096A DATE: January 17, 2020 REMANDED Entitlement to service connection for cause of the Veteran's death, to include as due to in-service exposure to asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1943 to January 1946 and in the United States Army from June 1948 to March 1952. Unfortunately, the Veteran died in March 2009, and the appellant is the Veteran’s surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The appellant expressed timely disagreement with this determination, and the present appeal ensued. In May 2015, the appellant participated in an informal conference with a Decision Review Officer (DRO) via telephone, and a summary of this informal conference is associated with the file. In October 2019, the appellant presented oral testimony in support of her appeal at a hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A copy of the October 2019 hearing transcript is of record. At the hearing, the appellant asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. This request was granted on the record, and the evidence received by the Board in October 2019 and November 2019 may be reviewed by the Board in the first instance. Preliminary note The Board observes that the appellant chose to proceed with the October 2019 Board hearing with the assistance of an employee of the AOJ, as her accredited representative was not present. Closer review of the file reflects that the appellant’s accredited representative, while still the Power of Attorney (POA) of record in VA matters, has not been active in assisting the appellant in pursuit of her VA benefits; however, the Board also notes that rating decision on appeal and readjudication of such in the August 2015 Statement of the Case were not sent to the representative and/or her parent organization. On remand, the AOJ should ensure that the appellant’s current POA of record, if not revoked and/or supplanted, is notified of all actions taken regarding the appellant’s appeal. 1. Entitlement to service connection for cause of the Veteran's death, to include as due to in-service exposure to asbestos While the Board sincerely regrets the additional delay, a remand is necessary to ensure that VA’s duty to assist the appellant in substantiating her appeal is fulfilled. The appellant contends that the Veteran’s in-service exposure to asbestos, during his first period of active duty in the United States Navy, caused or substantially contributed to his demise. The Veteran’s only service-connected disability at the time of his death were noncompensable residuals of a right index figure fracture; however, the medical evidence available for review reflects that the Veteran had an extensive history of cardiac disabilities and asbestosis. Unfortunately, the record for review by the Board is inadequate to address the appellant’s contentions under the governing VA laws. First, while it is clear that the Veteran served honorably in the United States Navy from April 1943 to January 1946, the record is devoid of his personnel records for this period of service. These records are critical to the crux of the appellant’s appeal, as such would show his ship assignments and Military Occupational Specialty (MOS), which would aide in determining if this period of service included exposure to asbestos. The AOJ attempted to obtain these records on two prior occasions, and the responses from the National Personnel Records Center (NPRC) reflect that the records are unavailable due to being involved, and presumably burned, in the 1973 fire that occurred at this facility. However, a closer review of the AOJ’s records requests reflects the Veteran’s second period of service in the United States Army was listed as the basis for the requests. Understandably, such requests, based on the wrong period of active duty, could not be fruitful. Moreover, the law concerning development in cases involving unavailable and/or fire-related service records were not abided. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Dixon v. Derwinski, 3 Vet. App. 261 (1992); Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); McCormick v. Gober, 14 Vet. App. 39 (2000). On remand, the AOJ must undertake all reasonable efforts to seek, obtain, and associate with the file, all personnel records from the Veteran’s first period of active duty in the United States Navy (from April 1943 to January 1946). If these efforts provide unfruitful, the AOJ must adhere to the guidelines and case law pertaining to cases involving fire-related records, to include exhaustive searches of alternative record repositories, to determine the Veteran’s assignments and duties during his initial period of active duty in the United States Navy. Further, the Board notes that the Veteran had an extensive history of heart disease that spanned more than 60 years prior to his demise, and one private physician has opined that his heart disabilities contributed to his death. Indeed, the Veteran filed a claim to establish service connection for “a weak heart” after his first period of active duty, and the AOJ denied such in a March 1946 rating decision. Moreover, the record includes a February 1964 statement from a private physician noting that the Veteran had been prescribed Digitalis for his heart disabilities. The Board observes that this medication has since been associated with the development of pancreatic cancer, which is listed on the Veteran’s death certificate as a contributory cause of his demise. In light of above, the Board concludes that the low threshold to trigger VA’s duty to assist the appellant by obtaining a medical opinion addressing the crux of her appeal has been met. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. The AOJ must request that the appellant identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who treated the Veteran during his lifetime, particularly for his heart and respiratory disabilities. After securing appropriate release(s) from the appellant, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. The appellant must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. The AOJ should contact the NPRC, the Department of the Navy, and any other appropriate location, to request the Veteran's complete service personnel records for his first period of active duty (April 1943 to January 1946). These efforts should include appropriate requests using the Personal Information Exchange System (PIES) system and any other procedures as required by the controlling case law and the VA Adjudication Procedures Manual, M21-1, Part III, Subpart iii, Chapter 2, Section 1. If the requested records remain unavailable, or the search for any such records otherwise yields negative results, the fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record. Required notice must be provided to the appellant, to include notice of alternative sources of evidence that may substitute for any missing service personnel records. 3. Thereafter, the AOJ must arrange for the Veteran’s complete file to be transferred to an appropriate medical professional to determine the relationship, if any, between the Veteran’s death and his active duty, to include any verified in-service asbestos exposure. After a review of the complete file, the examiner if requested to address the following: a. Is it at least as likely as not that the Veteran’s fatal acute ascending cholangitis, pancreatic tumor, and/or aortic valve stenosis is/are related to any incident of his active duty, to include any verified in-service asbestos exposure? b. Is it as least as likely as not that Digitalis, prescribed for the Veteran’s heart disabilities in the 1970’s, played a part in the development of his pancreatic tumor? If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. 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 the particular question. 4. Thereafter, the AOJ must readjudicate the issue of entitlement to service connection for cause of the Veteran’s death. If the benefit is not granted to the fullest extent, the appellant and her representative must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.