Citation Nr: 20022015 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-13 801 DATE: March 30, 2020 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran had active service from April 1952 to November 1955. He died in June 2002. The Appellant is his surviving spouse. She has appealed an October 2016 rating decision that denied service connection for the Veteran’s cause of death. The Appellant appeared at a hearing before the undersigned in April 2019. A transcript of the hearing is of record. Initially, the Board finds a medical opinion is necessary to ensure the decision on the Appellant’s claim is fully informed. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008) (explaining VA is required to assist a claimant in obtaining a medical opinion or examination regarding a claim for service connection for cause of death whenever such an opinion is necessary to substantiate the claim). The Appellant has raised two theories of entitlement for her service connection for cause of death claim. First, she asserts the respiratory and cardiovascular issues that were noted as the Veteran’s immediate and contributory causes of death were the result of in-service exposure to asbestos. The Appellant has provided evidence that indicates at least two of the Veteran’s duty stations are locations where asbestos exposure is known to have occurred. She has also provided competent medical evidence linking asbestos exposure to chronic obstructive pulmonary disease (COPD), which is explicitly noted on the Veteran’s death certificate. Second, the Appellant has asserted the Veteran was also exposed to ionizing radiation in service. The Board notes lung cancer is listed as a radiogenic disease in 38 C.F.R. § 3.311(b)(2). The Appellant has reported the Veteran was diagnosed with lung cancer in July 1983, resulting in treatment that she claims contributed to the respiratory issues that eventually led to his death. The Board notes the Veteran’s service personnel records include a notation that he was issued an “atomic weapons effects and individual action card” in September 1953. While the purpose for the issuance of this card is not entirely clear, the Board finds it suggests a possibility the Veteran could have been exposed to ionizing radiation in service, triggering the special development procedures outlined in 38 C.F.R. § 3.311. Additionally, the Board finds reasonable efforts should be made to ensure all available, relevant private treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Board acknowledges the Appellant’s November 2016 notice of disagreement indicates records related to the Veteran’s initial diagnosis for lung cancer are unavailable because they have been destroyed; however, this statement does not eliminate the possibility that other records could be available, to include, but not limited to, those related to the Veteran’s final course of treatment prior to his death in June 2002. The matter is REMANDED for the following action: 1. Make reasonable efforts to assist the Appellant in obtaining any relevant private treatment records that may be available for the Veteran. 2. Ensure compliance with the special development procedures for asbestos-related claims have been met. 3. After completing directive #2, obtain an opinion addressing whether the respiratory and/or cardiovascular issues that caused and/or contributed to the Veteran’s death were at least as likely as not (50 percent probability or greater) the result of asbestos exposure in service. The selected expert must be advised the Appellant is competent to report the Veteran’s medical history, and such reports must be specifically acknowledged and considered in formulating any opinion even if contemporaneous medical records to corroborate such reports are unavailable. If the expert rejects the Appellant’s reports, he or she must provide a reason for doing so. The expert’s report must include a complete rationale for the opinion provided. 4. If the opinion obtained pursuant to directive # 3 does not result in a favorable decision on the Appellant’s claim, forward the claims file to the VA Under Secretary of Health for the preparation of a dose estimate, to the extent feasible, based on available methodologies in accordance with 38 C.F.R. § 3.311 (a)(2). Then, forward the claims file to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c) with regard to lung cancer. If the VA Under Secretary for Benefits provides an opinion indicating the Veteran’s lung cancer at least as likely as not resulted from in-service exposure to ionizing radiation, obtain an opinion addressing whether lung cancer was at least as likely as not (50 percent probability or greater) either the principal or a contributory cause of the Veteran’s death. A disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. The selected expert must be advised the Appellant is competent to report the Veteran’s medical history, and such reports must be specifically acknowledged and considered in formulating any opinion even if contemporaneous medical records to corroborate such reports are unavailable. If the expert rejects the Appellant’s reports, he or she must provide a reason for doing so. The expert’s report must include a complete rationale for the opinion provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.