Citation Nr: 21008416 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-07 808 DATE: February 17, 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 in the United States Navy from September 1942 to December 1945 and the United States Air Force from April 1952 to December 1968. He died in November 2009 and the appellant is his surviving spouse. This matter is on appeal from a June 2010 rating decision. In December 2017, the Board remanded the claim for further development. The Board adjudicated the issue now before it in a November 2018 decision (not before the undersigned), in which the Board denied entitlement to service connection for cause of the Veteran’s death. The appellant appealed the denial of the claim to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, the Court granted a February 2020 Joint Motion for Remand (JMR) that vacated and remanded the case to the Board to ensure compliance with the terms of the JMR. In August 2020, the Board remanded the claim for further development pursuant to the JMR. Specifically, the Board remanded the claim for an etiological opinion as to whether the Veteran’s service-connected duodenal ulcer (with deformity, gastroesophageal reflux disease, and esophagitis) and/or his service-connected pernicious anemia either caused or contributed to his death. The physician was also asked to review the record, including records showing that his dysphagia and weight loss were associated with his end stage failure to thrive. Pursuant to the Board’s August 2020 remand, in an August 2020 VA medical opinion an examiner opined that it is less likely as not that the Veteran’s service-connected duodenal ulcer (with deformity, GERD, and esophagitis) and/or his service-connected anemia caused death, contributed substantially or materially to his death, combined to cause his death, aided or lent assistance to the production of death, resulted in debilitating effects and general impairment of health to the extent that it rendered the Veteran less capable of resisting the effects of either disease primarily causing death, or was of such severity as to have a material influence in accelerating death. However, in a February 2021 Brief the appellant raised a new theory of entitlement to service connection for the cause of the Veteran’s death–namely that the Veteran’s exposure to known carcinogens, chemicals, and other hazardous materials, including asbestos, during service is related to his lung cancer from which he died. The appellant’s representative claimed that the Veteran was exposed to asbestos aboard ships and in his barracks. The Veteran passed away in November 2009; the death certificate indicated that the direct cause of death was lung mass probable primary lung cancer. The death certificate also noted cerebral vascular accidents and failure to thrive as conditions or diseases leading or contributing to his immediate cause of death. At the time of his death, he was not service-connected for lung mass or lung cancer. However, since it is unclear whether there was any relationship between the Veteran’s lung cancer and his military service, on remand an addendum medical opinion should be obtained. This matter is REMANDED for the following actions: 1. Develop evidence related to the appellant’s claim that the Veteran was exposed to carcinogens, chemicals, and other hazardous materials, including asbestos, during service. Findings, to include negative results, should be documented in a memorandum. Evidence should be included in the claims file which is provided to the VA examiner. 2. Then, return the Veteran’s claims file to the examiner who wrote the August 2020 VA opinion on the Veteran’s cause of death. If that examiner is not available, then request an opinion from another qualified examiner. The examiner is requested to review the claims folder, to include this remand, and provide the following opinion: Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran’s lung mass–probable primary lung cancer, which led to his death, was etiologically related to his service, to include possible exposure to carcinogens, chemicals, and other hazardous materials, including asbestos? In rendering the requested opinion, the examiner should also specifically address and discuss the lay statements and February 2021 Brief. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.