Citation Nr: 21065980 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-46 587 DATE: October 28, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1943 to March 1946 and then in the Merchant Marines during July 1946. Unfortunately, he died in January 2012. The Appellant is his surviving spouse, so widow. She appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant-widow more recently testified in support of this claim during at an August 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to service connection for the cause of the Veteran's death is remanded. The Appellant-widow contends that the Veteran's chronic obstructive pulmonary disease (COPD), asthma, and bladder cancer were caused by asbestos exposure while serving at Camp Croft between March and October 1943, on board Naval ships traveling to wartime Europe, and while working as an Army painter during his World War II-era service. His death certificate indicates the immediate cause of his death was myocardial infarction (i.e., a heart attack) "due to" COPD and asthma. To date, no VA medical nexus opinion has been obtained concerning whether a service-connected disability either caused or contributed substantially or materially to the Veteran's death. See 38 C.F.R. § 3.312. And, for reasons and bases that will be discussed, the Board finds that a medical nexus opinion is needed concerning this posited correlation before deciding the appeal of this claim. Preliminarily, the Board sees that the Veteran served in the Merchant Marines in July 1946 and that the Appellant-widow previously alleged and testified to asbestos exposure during that service. By law, service in the Merchant Marines after August 15, 1945 is not qualifying service for the purpose of some VA benefits, including disability compensation benefits. See 38 U.S.C. § 101; 38 C.F.R. §§ 3.1(e), 3.6(a)-(d); 3.7. VA previously denied service connection based on any service in the Merchant Marines in or after July 1946 on these grounds. The Veteran's service in the Merchant Marines is established by Coast Guard records verifying the character of that service, and the Appellant does not dispute when that service occurred. Thus, since not qualifying service, she cannot receive any derivative death benefits from this agency owing to that service including Dependency and Indemnity Compensation (DIC) based on cause of death. VA's determination of whether a Veteran's service meets the threshold statutory service requirement is dependent upon service department records verifying the character of that service. See 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Therefore, considering the entire record and the undisputed nature of the Veteran's service in the Merchant Marines, the Board need not direct any further development of this claim at least not as concerning that service. Although service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty (see 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a)), there is no specific statutory or VA regulatory guidance regarding asbestos-related service-connection claims. Rather, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. In relevant part, these guidelines specify that asbestos fibers may produce tumors, pleural effusions, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). See M21-1, Part IV.ii.2.C.9 (Dec. 13, 2005). The latent period for disease development due to asbestos exposure ranges from 10 to 45 or more years between exposure and disease development. Id. Some of the major military occupations with risk of asbestos exposure include work in shipyards, carpentry and construction, and manufacture and installation of certain military products. Id. High risk of exposure is generally associated with World War II Veterans, particularly those working in shipyards. Id., at Part VIII.iii.7.C.1.e. Although VA is not always required to obtain a medical nexus opinion for a DIC claim, including in response to a claim for cause of death, VA is required to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim. 38 U.S.C. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Here, since the Appellant-widow, and therefore the Veteran, was not afforded a VA examination for a medical nexus opinion as to whether the COPD and asthma implicated in his death were related to or the result of his miliary service, including especially to any exposure to asbestos that may have occurred, the Board is remanding this claim for this further development. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). Accordingly, this claim is REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c), make efforts to obtain any outstanding VA and/or private treatment records concerning this claim. If attempts to obtain identified records are unsuccessful, notify the Appellant-widow of this in accordance with 38 C.F.R. § 3.159(e). 2. Ensure compliance with the protocols for developing a claim that, as here, is predicated on exposure to asbestos during the Veteran's service including considering any possible exposure before, during, and since his service. 3. After obtaining all additional records pertinent to this claim, request an appropriate clinician provide medical comment concerning the nature and etiology of the Veteran's COPD and asthma. The examiner is especially asked to indicate whether it is at least as likely as not the COPD and asthma are: a) directly related to any disease, injury, event during the Veteran's service including especially any potential exposure to asbestos during his World War II-era service at Camp Croft, or travel aboard a ship, or as a painter or in completing of construction work; or b) presumptively related to his service, meaning these diseases initially manifested to a compensable degree within a year of his discharge from service. *In responding, the examiner is asked to consider the accepted latency between exposure to asbestos and eventual development of consequent disease, so the opinion should not be predicated solely on the notion of the COPD and asthma not necessarily initially manifesting during the Veteran's service or even within a year of his discharge from service. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.