Citation Nr: 20008255 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 19-25 522 DATE: January 31, 2020 REMANDED Entitlement to service connection for mesothelioma, including as a result of in-service asbestos exposure, is remanded. Entitlement to service connection for the cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1966 until his honorable discharge in February 1970. The Veteran applied for service connection for mesothelioma, including as a result to asbestos exposure during service in October 2017. The Veteran died in November 2017, and the appellant is the Veteran’s surviving spouse. After the Veteran’s death, the appellant applied for DIC and accrued benefits in May 2018. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the United States Department of Veterans Affairs (VA). 1. Entitlement to service connection for mesothelioma, including as a result of in-service asbestos exposure is remanded. 2. Entitlement to service connection for the cause of death is remanded. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in November 2017 in which the VA examiner based the opinion on a review of available records without an in-person or video telehealth examination using acceptable clinical evidence because the examiner found that the existing medical evidence provided sufficient information on which to opine. The November 2017 VA examiner found that the Veteran’s disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because everyone is exposed to background levels of asbestos in the ambient air and studies have shown that members of the general (nonoccupationally exposed) population have tens of thousands to hundreds of thousands of asbestos fibers in each gram of dry lung tissue. The November 2017 VA examiner concluded that the Veteran’s near life-long history of tobacco abuse most likely is the causative factor in the development of mesothelioma lung cancer and not simply exposure to asbestos. The RO requested an addendum opinion from the November 2017 VA examiner citing VA Manual Reference IV. ii.2.C.2.c., Prevalence of Specific Diseases Resulting from Exposure to Asbestos, noting that the diagnosis of mesotheliomas is not to be associated with cigarette smoking. In response to the request for the addendum, the November 2017 VA examiner provided an addendum opinion in November 2018 stating, “As the VA has chosen to ignore the preponderance of evidence indicating clear increased risk, 28-fold, of developing lung cancer when asbestos exposure is coupled with smoking, any opinion of this examiner is rendered to speculation.” However, the Board notes that if the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Because the November 2017 and November 2018 VA examiner did not state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training; the November 2017 and November 2018 VA examination opinions are inadequate and a remand is required. The Board notes that the appellant has submitted a tremendous amount of information from both medical professionals and medical research literature addressing asbestos exposure, mesotheliomas, and tobacco abuse. However, the extensive record does not include a medical nexus opinion that the Veteran’s mesothelioma is at least as likely as not (50 percent probability or greater) began in service, was caused by service, or is otherwise related to active military service with detailed rationale. The Board also notes that included within the appellant’s submitted “Exhibit 6,” the July 2019 private provider opinion (received in August 2019) stated that smoking does not cause malignant mesothelioma. Although the private provider discussed the Veteran’s 75x increase in his pulmonary asbestos burden over an average “normal” level and critiqued the VA examination, he did not provide his own nexus opinion with a detailed rationale. Additionally, the July 2019 private opinion noted an additional detail that was not included in the record prior to this statement, the fact that the Veteran may have had additional asbestos exposure after his military service. Specifically, the Veteran worked in the steam plant and machine shop in the 1970s at the National Aeronautics and Space Administration (NASA) Langley Research Center in Hampton, Virginia. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the July 2019 private opinion is inadequate and not probative. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). In the present case, the record reflects that the Veteran worked for NASA that may have resulted in asbestos exposure. However, there are no records from NASA concerning the Veteran’s employment or potential asbestos exposure. Therefore, remand is warranted to obtain his NASA records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete federal records from NASA. Document all requests for information as well as all responses in the claims file. 2. After the above has been completed, obtain a VA medical examination by an appropriate clinician to address the nature and etiology of the Veteran’s Mesothelioma. The RO is requested to obtain this opinion from a different VA examiner than the examiner that provided the November 2017 and November 2018 VA opinions. The entire claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s disability began in service, was caused by service, or is otherwise related to active military service. The examiner should specifically address the following issues: (a) post-service employment, including employment in the steam plant and machine shop at the NASA Langley Research Center in Hampton, Virginia during the 1970s; (b) if post-service employment includes similar or greater risks of asbestos exposure to the Veteran’s highly probable asbestos exposure during service, the examiner is requested to opine on the probability of Mesothelioma being caused by in-service asbestos exposure compared to only post-service asbestos exposure; (c) private treatment records included within the record, including but not limited to autopsy reports and medical correspondence such as the July 2019 correspondence that was received in August 2019; (d) submitted articles, literature, and texts that have been submitted by the appellant; (e) mesothelioma lung cancer compared to other types of lung cancer caused by tobacco abuse; (f) the Veteran’s increased pulmonary asbestos burden and the Helsinki criteria for an asbestos-related tumor; (g) the Veteran’s active service in the United States Navy as a Boiler Technician, which has been determined was highly probable for asbestos exposure; (h) the appellant’s assertions within the August 2019 correspondence, including but not limited to the assertions that smoking has no influence on the risk of Mesothelioma. A complete rationale must be provided for any opinion offered. In accordance with Jones v. Shinseki, if the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.