Citation Nr: 21072030 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-29 235 DATE: December 2, 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 July 1971 to April 1980, to include service in the Republic of Vietnam. The Veteran's awards and decorations for his service include a Vietnam Cross of Gallantry with Palm, among others. Regrettably, the Veteran died in November 2012. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board in October 2021. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for the cause of the Veteran's death is remanded. The appellant contends that the Veteran's cause of death, namely asphyxia and esophageal cancer, is the result of his exposure to jet fuels and herbicide agents during his service, to include the Republic of Vietnam. Specifically, during the October 2021 hearing with the undersigned Veterans Law Judge, the appellant testified that the Veteran had been exposed to many different toxins while working on the aircrafts and to herbicide agent while serving in Vietnam. Prior to his death, the Veteran also submitted a statement in October 2012, stating that he believed his cancer had developed due to repeated exposure to carcinogenic substances while serving. The Board notes the Veteran has verified service in the Republic of Vietnam and therefore, exposure to herbicide agents has been conceded. However, although the Veteran has qualifying service in Vietnam, presumptive service connection for exposure to herbicide agents does not include the disability of anaplastic astrocytoma of the brain. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Given such, in order to be awarded service connection for this disability due to exposure to herbicide agents, the evidence must show that the Veteran's disability is related to his exposure to herbicide agents. During the Veteran's life, he was service connected for a low back strain, chondromalacia of the bilateral knees, chondromalacia patella of the bilateral knees, tinnitus, bilateral hearing loss, and right lower extremity radiculopathy associated with low back strain. In a cause of death claim, VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Here, the record does not include a medical opinion concerning whether the Veteran's esophageal cancer is directly related to service, to include jet fuel exposure or his conceded in-service exposure to herbicide agents. As a result, the Board finds that a remand is necessary to obtain such opinion. The matter is REMANDED for the following action: 1. The appellant should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the appellant, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the appellant and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. 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 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). 2. After completing the foregoing development, and following the receipt of any outstanding records, forward the claims file, to include a copy of this remand, to a qualified expert VA examiner, who should provide an opinion as to the cause of the Veteran's death. Following a review of the claims file, the examiner is specifically asked to furnish an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the immediate cause of the Veteran's death (esophageal cancer) is related to his military service, to include his in-service exposure to herbicide agents during his service in the Republic of Vietnam or to jet fuel exposure during his service in Germany. The examiner is asked to specifically address the Veteran's contention of being exposed to jet fuels with minimal protection as well as several indications of throat concerns during service, such as in April 1975, when the Veteran reported to experiencing flu-like symptoms. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above question, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.