Citation Nr: 21063722 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-35 172A DATE: October 15, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to burial benefits is remanded. REASONS FOR REMAND These matters come before the Board of Veterans' Appeals (Board) from an August 2014 rating decision and a September 2014 denial by the Department of Veterans Affairs (VA). Regarding the claim of entitlement to burial benefits, the Appellant submitted a timely notice of disagreement (NOD) to the September 2014 denial and the Agency of Original Jurisdiction (AOJ) acknowledged receipt of the timely NOD in a September 2015 letter. Despite the following, the AOJ has not issued a statement of the case. As such, a remand is required for the AOJ to issue a statement of the case for the claim of entitlement to burial benefits. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board acknowledges that in the April 2016 statement of the case (SOC) the AOJ confused the procedural history of the service connection claim for the cause of the Veteran's death, as it listed the September 8, 2014 as the date the Appellant was notified of August 2014 rating decision. That is in error, as September 8, 2014 is the date of the denial letter regarding the claim of entitlement to burial benefits and not the date the Appellant was notified of the August 2014 rating decision. However, this error may be advantageous to the Appellant as the notice of disagreement that is time stamped as received on September 8, 2015 may have been considered untimely as the notification letter is dated August 27, 2014. As such, the Board will not disturb the matter and presumes the NOD was timely filed and will proceed with the discussion of the appeal. As will be explained below, the Board finds that additional development is needed before the claim can be adjudicated. The Appellant contends that the Veteran's cause of death should be service connected. Specifically, she contends that the Veteran was diagnosed with irreversible lung damage and that there is a link between the ships he served on (U.S.S. Dixie and U.S.S. Coontz), asbestos and mesothelioma. See September 2015 notice of disagreement. She also contends that when the Veteran was hospitalized in June 2013, x-rays were performed, and the results showed cancer and that the doctor informed them that the cancer was caused by asbestos mesothelioma. See July 2016 VA-Form 9. The Veteran passed away in August 2013. The immediate cause of death is listed as cardiopulmonary arrest, with pulmonary bleed and bullous emphysema listed as underlying causes. See Death Certificate submitted May 2014. There is no presumption VA recognizes with respect asbestos exposure. Additionally, not only does the record not indicate a diagnosis of mesothelioma, but mesothelioma is not an enumerated disease that falls within any of the prescribed presumptions under 38 C.F. R. §3.309(e). Also, the record does not show, nor has the Appellant contended that the Veteran was exposed to herbicide agents, Agent Orange, or that he served in the Republic of Vietnam. Even if the Appellant is found not to be entitled to a regulatory presumption of service connection for the Veteran's cause of death, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The record also does not confirm a current diagnosis of a respiratory cancer, but the Appellant contends that the Veteran was diagnosed with cancer and the record illustrates diagnoses related to the lungs. Therefore, a medical opinion regarding the cause of the Veteran's death is required. A medical opinion was provided by a VA examiner in April 2016. The examiner stated that the claimed condition was not caused by service as the Veteran was not diagnosed with mesothelioma or emphysema, and medical literature shows that emphysema is not related to asbestos exposure. This opinion does not clearly opine as to whether the Veteran's death was caused by service and misstates the evidence of record. There is a July 2012 private treatment record that notes severe cystic lung emphysema, and as stated above the death certificate clearly lists bullous emphysema as an underlying cause of death. As such a remand is needed to obtain adequate medical opinions. The matters are REMANDED for the following action: 1. Send the Appellant and her representative a SOC that addresses the issue of entitlement to burial benefits. If the Appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Attempt to confirm whether the Veteran had exposure to asbestos in service. 3. Obtain and associate with the Veteran's claims file any outstanding VA medical records documenting treatment for any pulmonary or respiratory disorder, or any of its symptoms. 4. Invite the Appellant to identify and/or submit any outstanding private treatment records, to include any records illustrating diagnoses of cancer and or statements indicating exposure to asbestos. 5. After all record development has been accomplished, the AOJ should arrange for an appropriate clinician to review the complete record and assess the Appellant's claim as to the etiology of the Veteran's death. The electronic claims file must be sent to the clinician for review. 6. Following a thorough review of the file, to include this remand, the examiner should address the following questions: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cause of death, cardiopulmonary arrest, manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include possible exposure to asbestos. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's underlying cause of death, pulmonary bleed, manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include possible exposure to asbestos. (c.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's underlying cause of death, bullous emphysema, manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include possible exposure to asbestos. (d.) Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed lung disorder manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include possible exposure to asbestos. The examiner must also acknowledge, consider, and discuss the Appellant's contentions with respect to the factors she feels contributed to the Veteran's death, to include the fact that he was hospitalized days before his death. The examiner is requested to comment on the July 23, 2013 private treatment record that illustrates a diagnosis of end stage lung disease, with the plan to transfer the Veteran home on hospice and discuss what if any correlation that diagnosis may have had on the Veteran's cause of death. This record is located at: VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date July 5, 2016, pg. 2 of 36. A complete rationale should accompany any opinion provided. 7. The AOJ should ensure that the opinions conform with the remand directives. 8. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.