Citation Nr: 21067489 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-12 264 DATE: November 4, 2021 REMANDED The appeal regarding entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1959 to July 1963. The Veteran died in February 2018. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Appellant service connection for the Veteran's cause of death. A Board hearing was held in April 2020. A transcript is of record. The Veteran's immediate cause of death was small cell lung cancer. See Veteran's death certificate. The Appellant contends that the Veteran's lung cancer was caused by his exposure to asbestos in service. See Hearing Tr. at 4. Specifically, the Appellant asserts that the Veteran was exposed to asbestos either while stationed on the U.S.S. Aeolus or at Guantanamo Bay. Id. There is no specific statutory guidance with regard to asbestos related claims, nor has the Secretary promulgated any regulations in regard to such claims. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). A Veteran's probability of asbestos exposure can be classified by their military occupational specialty (MOS). An MOS is classified as minimal, probable, or highly probable asbestos exposure and should be conceded for the purposes of scheduling an examination. Military records show that the Veteran was stationed aboard U.S.S. Aeolus from May 1962 to July 1963. See military personnel records. He had tasks that required work in tight spaces that disturbed asbestos into the air which was then inhaled. See Board Hearing Tr. at 6. For these reasons, the Board finds that the Veteran was as likely as not exposed to asbestos while in service. Having found that the Veteran was exposed to asbestos, the Board notes that there is insufficient evidence of record to determine whether the Veteran's lung cancer was caused by his exposure to asbestos. The Veteran's physician, Dr. N.I., noted that "[a]sbestos may have caused his cancer." See March 2019 Dr. N.I. Letter. Unfortunately, this sentence was the entirety of Dr. N.I.'s letter. No basis for this conclusion was provided, which creates concern over its probative value. Moreover, the opinion is speculative in nature. Regardless, the Appellant has not been afforded a VA opinion as to the theory of contention. Thus, remand is necessary for an etiological opinion of the Veteran's cause of death. Moreover, the Board notes that at the time the Veteran separated from service, a doctor found an abnormality in the Veteran's lungs and chest. See STRs. The doctor noted "occasional expiratory wheeze over the anterior part of the chest. Id. On remand, the clinician should consider this in their opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his fatal respiratory disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's fatal small cell lung cancer. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. After the record review, the clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's small cell lung cancer was incurred in, or is otherwise related to, his time on active service, to include his exposure to asbestos therein? The reviewing clinician should consider Dr. N.I.'s March 2019 Letter concluding that asbestos may have caused the Veteran's cancer. The clinician should also consider the Veteran's separation examination noting an occasional expiratory wheeze over the anterior part of the chest. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Appellant and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.