Citation Nr: 21074176 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-35 975 DATE: December 14, 2021 REMANDED Entitlement to service connection for lung cancer to include as due to exposure to herbicides and/or asbestos is remanded. Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1959 to February 1960, and from January 1963 to December 1966. The Veteran passed away on August 29, 2011 and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claims. The appellant submitted a VA Form 21P-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits in August 2012. The appellant indicated that she was claiming Dependency and Indemnity Compensation (DIC) and Accrued Benefits. The Board notes that prior to the Veteran's passing, service connection was denied for lung cancer in a July 2011 rating decision. Although there was no formal substitution decision, it appears that the AOJ recognized the appellant as a substitute claimant based on the procedure of the case. As such, the appellant is a valid substitute claimant for the Veteran as to the issue of service connection for lung cancer. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.101. Additionally, the Board notes that the appellant has requested a hearing before a VLJ, hearings have been scheduled and postposed four times, most recently in October 2021 where she did not appear. The Board finds the appellant and representative did not provide good cause for missing the hearing scheduled for October 2021, therefore the hearing request is deemed withdrawn. 1. Entitlement to service connection for lung cancer to include as due to exposure to herbicides and/or asbestos is remanded. 2. Entitlement to service connection for cause of death is remanded. After a review of the evidence of record, the Board finds that a remand is warranted. The Veteran prior to his death and his spouse contend that his lung cancer was related to his exposure to herbicides while serving aboard the USS Kawishiwi in Vietnam and alternatively due to asbestos exposure from service aboard Navy ships. Ina March 2011 report of general information, the Veteran asserted that his ship was anchored in Da Nang Harbor in the Republic of Vietnam. In a May 2009 response (received in June 2011) from the joint service records research center (JSRRC), it was determined that the history and deck logs related to Navy and Coast Guard ships did not document that the Veteran's ship transported tactical herbicides or came into contact with aircraft that flew over Vietnam or equipment used in Vietnam. Additionally, the JSRRC stated it could not provide any evidence of the Veteran's claimed exposure while serving aboard Navy or Coast Guard ships. Service personnel records reveal that the Veteran served in the U.S. Navy aboard the USS Kawishiwi. He appears to have been on board from April 1965 to at least December 1966. He had also provided information that the ship anchored in Da Nang Harbor in the Republic of Vietnam. While this has not been specifically verified, it would suggest that the Ship was in the 12 mile territorial water limits of Vietnam. As a result of a recent Federal Circuit Court decision, and the passage of the Blue Water Navy Benefits Act, the location of the ship needs to be determined and may well provide a basis to allow a claim for service connection for lung cancer. These legal changes have occurred since the last adjudication of the case, and thus warrant additional development. Moreover, it does not appear that the RO completed any development in an attempt to determine any amount of asbestos exposure, if any. Thus, on remand, the RO should attempt to 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. A review of the record does not show which steps the RO made to determine whether or not asbestos exposure occurred. Additionally, no memorandum with a formal finding has been produced. Accordingly, a remand is necessary to undertake the necessary development to determine whether the Veteran was exposed to asbestos in service. Finally, the Veteran has not been afforded a VA examination for his claim regarding asbestos exposure causing lung cancer. The August 2011 death certificate of record shows that the cause of death was complications of lung cancer. The appellant has been de facto substituted in this appeal for the Veteran. As such VA's duty to assist under 38 U.S.C. § 5103A(d) applies. [This standard is different, per 38 U.S.C. § 5103A(a), for a matter such as service connection for the cause of the Veteran's death.] VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Here, the Veteran's records contain a diagnosis of lung cancer. The Veteran prior to his passing, contended that these disabilities are related to service, to include potential asbestos exposure. In support of this contention, the Veteran's spouse submitted a September 2014 letter from the Veteran's private physician, W.W., MD, reporting that the Veteran had metastatic adenocarcinoma of the lung with skeletal metastases and based on the Veteran's spouse reports of the Veteran's exposure to herbicides, the physician reported that it was possible that the asbestos caused the lung cancer. The Board finds that the evidence submitted meets or exceeds the low threshold of McClendon. As such, a VA nexus opinion is warranted. As noted above, the cause of death matter is intertwined with the lung cancer issue as lung cancer is list on the Veteran's death certificate. Based on the foregoing, these matters are remanded for further development and adjudication. The matters are REMANDED for the following action: 1. Undertake appropriate development to ascertain whether the Veteran's ship, the Kawishiwi, was within the 12-mile territorial waters of Vietnam at any time during which he was on board. Detail all steps that are taken in making the determination. 2. Undertake appropriate development to ascertain and determine the Veteran's likelihood of in-service asbestos exposure. Detail all steps that are taken in making the determination in the claims file. 3. After the above mentioned development, schedule the Veteran's claims file to be forwarded to an appropriate clinician to determine the nature and etiology of the Veteran's lung cancer. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to provide an opinion as to: Whether it is at least as likely as not (probability of approximately 50 percent) that the Veteran's lung cancer had its onset during service, or is otherwise causally related to service. In the event that herbicide and/or asbestos exposure is conceded or found, whether it is at least as likely as not that the Veteran's lung cancer was etiologically related to, assuming arguendo for the purpose of this opinion only, in-service herbicide and/or asbestos exposure. (Continued on the next page) The VA examiner is requested to provide a full rationale for all conclusions reached and must also comment upon the September 2014 private physician noting a possibility of a relationship between the lung cancer and asbestos exposure. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.