Citation Nr: 21068997 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-06 317 DATE: November 24, 2021 REMANDED Entitlement to service connection for COPD, to include as due to toxic herbicide exposure and/or jet fuel exhaust, for purposes of accrued benefits, is remanded. Entitlement to service connection for the cause of the Veteran's death. Entitlement to benefits under 38 U.S.C. § 1151 for the cause of the Veteran's death. REASONS FOR REMAND The Veteran served on active duty from February 1966 to December 1968. The Veteran died in July 2016, the appellant is the Veteran's widow and successfully substituted herself for the Veteran on his outstanding claim. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of remand decisions issued by the Court of Appeals for Veterans' Claims (CAVC) and the Board itself, both mandated the further development of the appellant's claim. The appellant testified at a Video Conference before the undersigned Board Veteran's Law Judge in August 2017. A transcript of hearing is associated with the claims file. The Board notes that the appellant submitted a VA Form 9 in April 2018 in which she appealed claims for the Veteran's cause of death under 38 U.S.C. § 1151, and DIC compensation under 38 U.S.C. § 1318 to the Board. These claims were not responded to in the March 2019 Board decision. As such the Board addresses these claims in the decision below. 1. Entitlement to service connection for COPD, to include as due to toxic herbicide exposure and/or jet fuel exhaust, is remanded. At the time of his death, the Veteran had an outstanding claim for entitlement to service connection for COPD. The appellant, the Veteran's widow, successfully substituted herself for the purpose of the adjudication of the claim for the purpose of accrued benefits. Both the Veteran and the appellant have alleged that the Veteran's COPD was caused by his exposure to toxic herbicides and/or jet fuel exhaust during active-duty service. Additionally, the appellant has alleged that the Veteran's medical treatment may have aggravated his COPD. As an initial matter, the Board notes that the Veteran's exposure to toxic herbicides has been conceded. The Joint Motion for Partial Remand (JMR) issued by CAVC indicated that VA outpatient medical records must be sought by the RO before the Board can adjudicate the appellant's claim. Additionally, the December 2019 VA examination has been found to be inadequate. Namely, the examiner failed to provide a rationale for the opinion they provided. Moreover, the examiner did not address another theory of entitlement that was raised before December 2019; that the Veteran's COPD may have been caused by exposure to jet fuel and or diesel exhaust/fumes. The examiner also, did not address the Veteran's prior lay statements that he first noticed difficulty breathing in 1967 and that he was evaluated for breathing problems in 1970 at the Columbus VA Medical Center (VAMC). It is not clear whether the examiner was aware of these statements when they provided their opinion. Finally, the appellant has recently alleged that the Veteran's COPD may have been aggravated by medical care received at a VA facility. This theory was not raised prior to the VA examination but nevertheless should be investigated. The appellant has not provided specific details for this theory of entitlement, however, the Veteran was service connected for several disabilities prior to his death and likely received treatment for them at a VA facility. Thus, the appellant's claim must be remanded for the provision of an addendum opinion to address the deficiencies flagged by CAVC in the June 2021 JMR. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to benefits under 38 U.S.C. § 1151 for the cause of the Veteran's death. In the prior decision, the Board also remanded the issue of entitlement to benefits under 38 U.S.C. § 1151 for the cause of the Veteran's death in order to obtain a new examination and to acquire an informed consent form. While this was a claim based on VA treatment, it is also reasonably apparent that the outcome of the above service connection claim may have a significant impact on the resolution of this claim as well. As such, the two are inextricably intertwined, and both should be addressed collectively. The matters are REMANDED for the following action: 1. The RO should invite the appellant to submit any evidence that may support her claim. 2. The RO should seek the Veteran's medical records from any VA facility where he may have received treatment prior to 2002. In particular, the RO should seek the records from the Columbus VAMC, namely a 1970 VA examination. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant and her attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. Following the completion of the prior directive, the RO should obtain an addendum opinion from the December 2019 examiner if available, or an otherwise appropriate clinician to determine the nature, extent, onset, and etiology of the Veteran's COPD. The complete claims file should be made available to the examiner. The examiner should provide opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's COPD is etiologically related to the Veteran's period of service, or to another diagnosed disorder or its prescribed treatment. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's COPD was aggravated by any treatment he received for another service-connected disability (PTSD, left ankle fracture residuals, and tinnitus.) The examiner should discuss whether the Veteran's COPD could be due to conceded exposures to any toxic herbicides and/or jet fuel or diesel exhaust or fumes. The examiner is asked to provide a rationale explaining their opinion, not simply to state that another cause may be more or less likely. Additionally, the examiner should address any new medical records added by the RO, the Veteran's lay statements regarding his breathing issues in service or his treatment after he separated from service. The examiner should also address the treatises submitted by the appellant and her attorney. These include: "The CDC's March 2017 Toxicological Profile" and the VA's publication "Military Vehicle and Aircraft Exhaust Exposure". All opinions should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The RO should undertake any additional development it deems necessary to resolve these claims, to include the need for any additional opinions or acquiring of medical records. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor