Citation Nr: 21070911
Decision Date: 11/26/21	Archive Date: 11/26/21

DOCKET NO. 16-12 468A
DATE: November 26, 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 from August 1969 to May 1971.  He died in April 2010.  The appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

The appellant testified before the undersigned Veterans Law Judge (VLJ) during a September 2020 videoconference hearing.  A transcript of that hearing is associated with the claims file. This case was previously before the Board in May 2021 when it was remanded for additional development.  

Entitlement to service connection for the cause of the Veteran's death is remanded.

As noted above, this matter was remanded by the Board in May 2021 to obtain an opinion regarding the cause of the Veteran's death.  Specifically, the examiner was asked whether it is at least as likely as not that the cause of the Veteran's death (metastatic cancer) was related to his period of active service, to include as a result of his presumed exposure to contaminated soil on the flight line in Imperial Beach, California.  After a review of the claims file, the June 2021 VA examiner opined that there was "insufficient evidence to establish a nexus, with greater than 50% probability, that this patient's cause of death (metastatic cancer) was related to his period of active service."  The evidentiary standard for service connection is not a preponderance of the evidence, but equipoise.  In other words, the condition need only be "at least at likely as not", or a 50 percent or greater probability, to establish service connection.  Therefore, the examiner's reasoning applies the incorrect standard to service connection and is inadequate.  Accordingly, an addendum opinion should be obtained.

The matters are REMANDED for the following action:

1. Obtain an addendum VA medical opinion regarding the cause of the Veteran's death.  The claims file, to include a copy of this remand, must be available to, and reviewed by, the medical professional.  Based on a review of the pertinent evidence of record in light of accepted medical principles, the medical professional should respond to the following:

Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's cause of death (metastatic cancer) was related to his period of active service, to include as a result of his presumed exposure to contaminated soil on the flight line in Imperial Beach, California?

In rendering this opinion, the medical professional must specifically consider and discuss the articles submitted by the appellant noting the contaminants found in the soil at Imperial Beach, the Veteran's service as an airplane mechanic in Imperial Beach from February 1970 to May 1971, and the medical records regarding the Veteran's metastatic cancer. The examiner is reminded that the Veteran's exposure to contaminants in the soil is presumed and not "hypothetical." 

A complete rationale for all opinions must be provided.  If the medical professional cannot provide the requested opinion without resorting to speculation, it must be so stated, and the medical professional must provide the reasons why providing an opinion would require speculation.

 

 

CAROLINE B. FLEMING

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Connor, 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.