Citation Nr: 21064862 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-29 967 DATE: October 21, 2021 REMANDED The claim of entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty with the U.S. Navy from July 1939 to July 1950. The Veteran passed away in November 1982. The Veteran's surviving spouse is the Appellant in this matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in May 2020 and January 2021. The case was remanded for further development, to include obtaining an adequate medical opinion regarding the cause of the Veteran's death. Although sincerely regrettable, additional remand is required for full compliance with the Board's previous remand instructions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Appellant requested a videoconference hearing but withdrew her request for her scheduled hearing in January 2020 citing her inability to travel due to her advanced age. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). The claim of entitlement to service connection for cause of the Veteran's death is remanded. The Appellant contends that the Veteran's cause of death was due to asbestos exposure after having served in the Navy for 11 years, as he worked aboard ships and submarines. See September 2015 Notice of Disagreement (NOD); May 2017 Form 9 Appeal. The RO has conceded that the Veteran's in-service asbestos exposure risk was "probable" given his military occupational specialty (MOS). See August 2015 VA Memorandum. The Veteran passed away in November 1982. Prior to his death, the Veteran was not service connected for any disabilities. The death certificate recorded the Veteran's primary (immediate) cause of death as cardiorespiratory arrest, due to, and a consequence of, oat cell carcinoma of the lung. Multiple medical opinions have been obtained in this case, including opinions dated August 2015, July 2020, July 2021, and August 2021. The Board previously found the August 2015 and July 2020 opinions inadequate. Specifically, the August 2015 examiner failed to provide an opinion as to whether the Veteran's cause of death, cardiorespiratory arrest, was related to his military service, to include asbestos exposure. The Board found the July 2020 opinion inadequate as the clinician incorrectly stated there was no indication of asbestos related lung disease despite tomography findings that were "suggestive of localised mesothelioma, or pleura pseudotumor or pleural infarcts" and other possibilities that included "renal metastasis, pleural thickening caused by any occupational disease." The Board directed that a medical opinion be obtained as to whether the tomography showed asbestos damage and whether it was at least as likely as not that the asbestos damage substantially or materially contributed to the Veteran's death. Additionally, the Board directed the RO to attempt to obtain records from the Veteran's private provider, a physician with the initials M.K., as the Appellant asserts that M.K., stated that the Veteran's cancer was not caused by the Veteran's tobacco smoking. The Board also directed the RO to request records from South Louisiana Medical Center (Medical Center) in Houma, Louisiana, for the period around the Veteran's date of death. On remand, the RO did request medical records created by Dr. M.K. and the Medical Center; however, the records requests imply that they were for records for a current patient, without identifying a timeframe specific to the request as directed by the Board (as treatment would have been during and/or before November 1982). The providers responded that the Veteran was "not a patient" and provided direct contact numbers for further questions. It appears that no additional follow up was made to determine if archived records from 1982 exist for former patients. The Board finds that an additional attempt to request these records is warranted. Next, on remand, the RO requested an addendum opinion as directed; however, the July 2021 addendum indicated only that the clinician "agree[d] totally" with the July 2020 opinion and offered a recitation of the prior opinion without adding any additional discussion as directed by the Board. The RO recognized this shortcoming when it asked for a clarification of the opinion in August 2021. In response, a new clinician offered a repetition of the opinions of evidence and added only that, "Tomography reviewed is suggestive of mesothelioma, pleural pseudomotor or pleural infarcts but does not offer objective evidence of mesothelioma, pleural pseudomotor or pleural infarcts. There is no other objective evidence of asbestos exposure related diseases in records." This opinion, again, failed to adequately address the evidence as requested by the Board. First, it is unclear why the clinician considered the tomography imaging record to not be "objective" evidence, and the remainder of this opinion is conclusory, indicating only that there was "no other objective evidence of asbestos exposure related diseases in records." The Board notes that 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). The 2021 addendum opinions fail to meet this standard and fails to address lay evidence of record from the Appellant. As such, remand for an adequate opinion as to whether it is likely as not that the conceded asbestos exposure during service substantially or materially contributed to the Veteran's death. The matter is REMANDED for the following action: 1. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). 2. Conduct follow-up inquiries and/or make new requests for the authorized records from South LA Med Associates and from Ochsner Health, Dr. M.K. These requests must clearly specify that records requested are suspected to be from 1982. 3. After the above development is complete, obtain an addendum opinion from an appropriate clinician (preferably one with experience with lung and/or respiratory conditions) regarding whether the Veteran's probable asbestos exposure during service substantially or materially contributed to the Veteran's death. In opining whether the Veteran's probable asbestos exposure substantially or materially contributed to the Veteran's cause of death, the clinician shall be asked to provide a discussion of the known causes of oat cell carcinoma, including any association between development of the condition and exposure to asbestos. This discussion should include consideration and evaluation of the tomography imaging record that has been noted to be "suggestive of localised mesothelioma, or pleural pseudotumor or pleural infarcts" and of other possibilities of "renal metastasis, pleural thickening caused by any occupational disease." The clinician shall be instructed that all relevant evidence of record should be utilized to provide a reasoned opinion as to the etiology of the Veteran's oat cell carcinoma and eventual cardiorespiratory arrest. In other words, the clinician should explain the currently accepted medical research regarding the causes of oat cell carcinoma and other possible lung conditions identified by the March 1982 broncoscopy, right exploratory thoracotomy, pleural biopsy and undated tomography (received February 2015), and then apply that information to both the in-service and post-service medical evidence and lay evidence in the Veteran's claims file (e.g., the Appellant's May 2017 statements that the Veteran stopped smoking 5 years prior to his passing and that his cancer was reportedly not due to cigarette smoking). If any requested opinion cannot be offered without resorting to speculation, the clinician should indicate such in the addendum and explain why a non-speculative opinion cannot be offered. (Continued on the following page.) 4. Thereafter, readjudicate the Appellant's claim. If the benefit sought remains denied, provide the Appellant and her representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.