Citation Nr: 20006545 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 15-07 458 DATE: January 27, 2020 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1942 to February 1946. He died in November 1996, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an initial July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. By way of background, this matter was previously denied by the Board in a June 2018 decision, which the Appellant then appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Remand (JMR) vacating and remanding the Board’s June 2018 denial. Specifically, the parties agreed that the June 2018 Board decision did not provide an adequate statement of reasons or bases to support the determination that the Veteran was not exposed to asbestos in service. Specifically, the JMR noted three key pieces of evidence related to the Veteran’s possible exposure to asbestos in service: (1) the Appellant’s statement that the Veteran performed repair work on trucks during service; (2) the Veteran’s DD-214 indicating that he had six months of auto mechanic training; and (3) an article submitted by the Appellant detailing some of the reasons for the high risk of asbestos exposure in the automotive industry. Subsequent to the Court’s order, the Appellant submitted a September 2019 private medical opinion. Therein, the private physician opined that it was at least as likely as not that the Veteran’s lung carcinoma, and its contribution to his death, were the result of his asbestos exposure while on active duty, regardless of any reported smoking history. The private physician reasoned that the Veteran would have been exposed to asbestos fibers while working as an automobile mechanic in service. Due to the Veteran’s high risk of asbestos exposure, he was also at a high risk of developing lung cancer. The private physician also noted the following: “Unfortunately, previous VA examiners have not recognized the Veteran’s history as an automechanic while enlisted in the military and have isolated his history of cigarette smoking as being the leading risk factor responsible for his lung cancer and eventual demise.” The private physician further opined that in his opinion, both risk factors of exposure to cigarette smoke and asbestos “acted in a synergistic fashion to promote his lung carcinoma.” Regarding this September 2019 private opinion, the Board notes that it appears to be factually inconsistent with the other evidence of record. Specifically, there is no indication that the Veteran underwent a VA examination prior to his death, or that a VA opinion was obtained after his death proffering an opinion as to the etiologies of the disabilities that contributed to his death. Further, it is unclear from the private medical opinion if the private physician relied on medical evidence not associated with the claims file. Specifically, the private physician indicated that he relied on primary care physician medical records and private medical records in addition to service treatment records. The Board notes that the only medical records that appear to be associated with the claims file are service treatment records. Finally, the private physician indicated that the Veteran had a history of smoking. However, upon review of the evidence of record, it is unclear where this information is derived, as there is currently no indication of record that the Veteran had a history of smoking. Thus, in light of the foregoing, the Board finds that a remand to obtain a VA medical opinion regarding the etiologies of the diseases that contributed to the Veteran’s death is warranted. The Board notes that a VA medical opinion has not been obtained in this matter. As there is an indication of record that the Veteran was at a high risk of asbestos exposure in service due to his auto mechanic training and that the disabilities that contributed to the Veteran’s death were caused by this high risk of in-service asbestos exposure, the Board finds that a remand is warranted to obtain a VA medical opinion. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Further, the Board finds that a remand is warranted to seek to obtain any outstanding medical treatment records. The Board notes that in June 2013, the RO attempted to obtain medical treatment records from medical facilities identified by the Appellant. However, requests to these facilities did not generate any medical records. As it appears that the private examiner may have reviewed treatment records not associated with the claims file, the Board requests that on remand, the Appellant be provided the opportunity to identify any outstanding private treatment records. Accordingly, the matter is REMANDED for the following action: 1. Ask the Appellant to complete a VA Form 21-4142 for any additional private treatment records. Complete any necessary further development. 2. Forward the electronic claims file to an appropriate examiner for an opinion as to the nature and etiology of the disabilities that contributed to the Veteran’s death. Following the review of the claims file, the VA examiner should provide an opinion, with a complete rationale, on the following: Whether it is at least as likely as not (a 50 percent probability or greater) that the disabilities that contributed to the Veteran’s death were caused by, or otherwise related to, his reported asbestos exposure during service. 3. After undertaking any additional development deemed appropriate, and giving the Appellant a full opportunity to supplement the record, adjudicate the Appellant’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Appellant and her attorney should 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. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. DeChiara, 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.