Citation Nr: 20004958 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 19-00 821 DATE: January 24, 2020 REMANDED Compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death.   REASONS FOR REMAND The Veteran served on active duty from September 1961 to September 1964. He died in September 2016. The appellant is his surviving spouse. The case is on appeal from a September 2018 rating decision. The Board notes that the Veteran filed claims for a higher rating for hearing loss, a total disability rating based on individual unemployability (TDIU) and claims to reopen service connection for a lung disorder due to asbestos exposure and a right arm injury in September 2016 that have not been adjudicated by the RO. Thereafter, later in September 2016, the appellant requested substitution for such claims. Therefore, as the Board does not have jurisdiction over those claims, they are referred to the RO for a substitution determination and appropriate action, if warranted. See 38 C.F.R. §§ 3.1010, 19.9(b). Compensation under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran’s death. The appellant contends that VA treatment caused or contributed substantially or materially to the Veteran’s death. In a September 2016 correspondence, the Veteran stated that VA physicians did not take his report of being exposed to asbestos seriously in regard to the etiology of his lung or liver conditions while treating him for colon cancer. In a May 2017 correspondence, the appellant stated that VA medical care was inadequate during the Veteran’s last illness. Thereafter, in a September 2017 correspondence, the appellant stated that VA medical staff hastened the Veteran’s death due to failure to provide him with nutrients during his last few months. A rating decision in October 2016 denied service connection for the cause of the Veteran’s death. This was based on standard service connection. The Board notes that, in September 2017, the RO asked the appellant to clarify if she was requesting service connection for the Veteran’s cause of death or compensation under 38 U.S.C. § 1151. In a November 2017 statement, the appellant reported that she was seeking compensation under 38 U.S.C. § 1151. The September 2018 rating decision and October 2018 statement of the case (SOC) addressed this issue. However, in a November 2018 VA Form 9, the appellant requested service connection for the cause of the Veteran’s death. As a claim to reopen a claim of service connection for the cause of the Veteran’s death has not been adjudicated by the RO, the Board does not have jurisdiction over such claim. 38 C.F.R. § 19.9(b). The appellant is advised that she may file a claim to reopen on a standard VA form for adjudication of this issue. See 38 C.F.R. § 3.155. The Board will address the appeal based on the theory of 38 U.S.C. § 1151. The September 2016 death certificate lists the Veteran’s cause of death as sigmoid adenocarcinoma with other significant contributing conditions of widely metastatic adenocarcinoma in liver, lungs, abdominal, and mediastinal lymph nodes and also notes that a partial hepatectomy was performed in August 2016 in regard to such conditions. The Veteran’s VA treatment records indicate that his family requested an autopsy be performed. If an autopsy was performed, the record has not yet been associated with the file. In September 2018, the RO obtained an opinion in regard to this claim. The examiner found that the Veteran’s death was not due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA or an event not reasonably foreseeable. On remand, the Veteran’s VA treatment records since March 2015 should be associated with the file, to include the record of any autopsy performed. Thereafter, an independent expert medical opinion should be obtained addressing the issue on appeal pursuant to 38 U.S.C. § 5109. The claim is REMANDED for the following actions: 1. Obtain complete VA treatment records from March 2015, to include the record of any autopsy performed. 2. Thereafter, obtain an independent medical expert opinion, from an oncologist if possible, pursuant to 38 U.S.C. § 5109. The claims file should be made available to and reviewed by the designated independent medical expert. The expert should provide medical opinions as to the following inquiries: (a.) State whether it is at least as likely as not (50 percent or greater probability) that any VA failure to consider asbestos exposure as a possible etiology for lung or liver conditions while treating the Veteran during his last illness caused or contributed substantially or materially to his death. (b.) If a relationship if found between the Veteran’s death and any VA failure to consider asbestos exposure as a possible etiology for lung or liver conditions while treating the Veteran during his last illness, provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that the Veteran’s death was the result of (i) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or (ii) an event not reasonably foreseeable. (c.) State whether it is at least as likely as not (50 percent or greater probability) that any VA failure to provide nutrition while treating the Veteran during his last illness in 2016 caused or contributed substantially or materially to his death. (d.) If a relationship if found between the Veteran’s death and any VA failure to provide nutrition while treating him during his last illness in 2016, provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that the Veteran’s death was the result of (i) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or (ii) an event not reasonably foreseeable. A rationale should be provided for opinions offered. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.