Citation Nr: 21008972 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-19 324 DATE: February 18, 2021 REMANDED Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for hypoxemia associated with lung cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to November 1970. The Veteran died in April 2014. The appellant in this case is his surviving spouse. Prior to his death, the Veteran submitted claims for service-connected compensation for lung cancer and hypoxemia, which were denied by the Agency of Original Jurisdiction (AOJ), in decisions issued in September 2010 and November 2013, respectively. When he died, his wife was permitted to substitute as the appellant in both cases for the purpose of processing these claims to completion. 38 U.S.C. § 5121A. On her own behalf, the appellant appealed the denial of a claim for dependency and indemnity compensation – in which she claimed that a service-connected disability caused the Veteran’s death. The Board remanded these claims for further development in August 2019. As the Board explained in its August 2019 remand, the appellant initiated a timely appeal of the September 2014 decision denying her claim for service connection for the cause of the Veteran’s death, but the AOJ initially failed to issue a statement of the case (SOC) as required by Manlincon v. West, 12 Vet. App. 238 (1999). In its remand orders, the Board instructed the AOJ to issue an SOC readjudicating this issue and to return the issue to the Board “only if a timely substantive appeal is received.” The AOJ issued the required SOC in August 2019. Although this document was mailed to the appellant at the address she identified in her most recent prior correspondence to VA, she did not file a VA Form 9 within 60 days (substantive appeal). Indeed, there is no record that she ever filed a VA Form 9 in response to the August 2019 SOC. Under 38 C.F.R. § 19.2(b), a substantive appeal must be filed within 60 days after the AOJ mails the SOC to the appellant. Because the appellant was properly notified, the denial of her claim for service connection for the cause of the Veteran’s death became final when she failed to perfect her appeal within this time limit. See 38 C.F.R. § 20.1103. Accordingly, only the claims which were the subject of the appellant’s substitution motion remain on appeal. 1. Entitlement to service connection for lung cancer is remanded. 2. Entitlement to service connection for hypoxemia associated with lung cancer is remanded. As the Board explained in its earlier remand, the issue of service connection for hypoxemia – defined as “deficient oxygenation of the blood . . .”, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 908 (32d ed. 2012) – is inextricably intertwined with the claim for service connection for lung cancer. The Board will continue to consider these potentially related claims together. The medical evidence indicates that the Veteran was diagnosed with lung cancer and hypoxemia. Before he died, he wrote that he believed that exposure to three potentially hazardous substances during service caused his lung cancer: (1) radiation associated with radar equipment; (2) barrels stored on the South Carolina Air Force Base, where he was stationed; according to rumors he remembered, the barrels “may have contained Agent Orange”; (3) asbestos in the heat shield and other components of a generator he “handled on a daily basis” pursuant to his military occupation specialty (MOS) of aerospace ground equipment repairman. Personnel records document his service in this capacity and as a ground equipment mechanic. It appears that the AOJ has substantially completed the development needed to decide the question of radiation exposure. In October 2012, the Air Force provided a memorandum indicating that they conducted a search of their occupational radiation exposure monitoring records for information concerning this Veteran. The memorandum also included estimates of the dose of ionizing radiation associated with his work near radar systems. The main focus of the Board’s August 2019 remand was to ensure compliance with the previously incomplete procedures for the development of radiation-related claims in 38 C.F.R. § 3.311. As requested, the AOJ requested an opinion from the Under Secretary for Benefits. The Director of the Compensation Service acted on the request by seeking an opinion from the Under Secretary for Health in September 2020, who provided a report from a health physicist, which concluded that it was unlikely that the Veteran’s lung cancer was caused by exposure to ionizing radiation in service. Based on this report, the Director sent the AOJ the advisory opinion required by the regulation. Because of the vagueness of the Veteran’s allegations of herbicide exposure and his statement identifying the hazardous substance based on “rumors” attributed to unknown persons, it is difficult to imagine what additional development could help establish his claim based on exposure to the herbicide agents, either directly or pursuant to the presumptions in 38 C.F.R. § 3.309(e). As it pertains to his claim concerning asbestos exposure, the Board finds that development seems still incomplete. The AOJ denied service connection for lung cancer without obtaining a medical opinion on the issue in part because the Veteran did not respond to questions on the second page of a letter which “requested detailed information concerning your exposure to asbestos during military service.” However, much of the information requested in that letter was already provided by the Veteran in an August 2009 letter, which describes the generator equipment he work with, indicates that the generator’s “heat shield” was made of asbestos, and indicates the approximate dates and locations where the claimed exposure took place (Air Force Bases in Texas, Illinois, South Carolina, and Arizona). For Navy veterans, the VA Adjudication Procedures Manual indicates that asbestos exposure should be conceded, and a medical opinion should be obtained, when the claimant had one of a list of MOS types and there is evidence of the claimed current disability. See M21-1, Part IV, Subpart ii, Chapter 1, § I, Topic 3 (updated July 23, 2020). Topic 3(d) indicates that the list is not excusive and, “If a Veteran from another branch of service. . . held one of the occupations listed below, concede the probability of exposure.” Although “aerospace ground equipment repairman” and “ground equipment mechanic” do not appear on the list, the Veteran’s duties do seem to be similar to some of the listed MOS types, such as aviation structural mechanic, aviation support equipment technician, and aviation electronic technician. According to the manual, all three of these MOS types are associated with “probable” exposure to asbestos. Part IV, Subpart ii, Chapter 2, § C, Topic 2(d) (“Occupational Exposure to Asbestos”) describes “insulation work” as a major occupation involving exposure to asbestos and the generator heat shield described in the Veteran’s letter can be plausibly understood as a form of insulation. Topic (2)(c) of the same section identifies lung cancer as one of the specific diseases that may result from asbestos exposure. Based on this evidence, the Board finds that the Veteran’s claimed in-service asbestos exposure should be conceded. A physician specializing in oncology wrote a letter on the Veteran’s behalf in May 2010 indicating the Veteran “had a metastatic non-small cell lung cancer. He reports a history of asbestos exposure during his military service. He was unfortunately also a cigarette smoker for a number of years. The exposure to asbestos in patients who smoke is clearly associated with an increased risk of development of lung cancer and death related to lung cancer.” This letter is not sufficient to decide the claim, in part because the physician did not apply the equipoise standard and also because, if smoking is the most probable explanation for the Veteran’s lung cancer, service-connected compensation is not permitted. 38 U.S.C. § 1103(a). In response to earlier decision documents suggesting that he smoked for 30 years, the Veteran wrote to clarify that, “I only smoked for 8 years while in the service.” But the letter, together with the Veteran’s statements, satisfies the standard for requiring a medical opinion on the probability of a relationship between lung cancer and asbestos exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board requested an opinion from a VHA expert concerning radiation exposure. But that request instructed the expert that “there is no evidence in the record that the Veteran was ever exposed . . . to asbestos. . .” Because the quoted statement is inconsistent with the Veteran’s August 2009 letter and, by implication, the May 2010 oncologist’s letter, the Board has reconsidered this finding. Although the need for further delay is regrettable, the Board will remand the claims for service connection for lung cancer and hypoxemia to the AOJ to obtain an opinion concerning the probability of a causal relationship between lung cancer and in-service asbestos exposure. The matters are REMANDED for the following action: 1. Send the claims file to a qualified physician for the purpose of preparing a medical opinion on the probability of a relationship between the Veteran’s post-service lung cancer, which seems to have caused his death in 2014, and his in-service exposure to asbestos during his active duty service. The VBMS and Virtual VA electronic claims, including any new information submitted by the appellant and a copy of this remand, must be made available to and be reviewed by the examiner. After reviewing the file, the examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s post-service lung cancer is related to any in-service disease, injury, or event, including his conceded in-service exposure to asbestos in the Air Force? The examiner should provide a complete rationale for his or her opinion, which should discuss the May 2010 letter from one of the Veteran’s treating oncologists. The examiner is advised that the letter appears to attribute the Veteran’s post-service lung cancer to both smoking and asbestos exposure. The examiner is advised that before he died, contrary to earlier reports that he had been a smoker for 30 years, the Veteran wrote that he only smoked for 8 years. His wife also wrote to the AOJ, indicating that her husband only smoked for 8 years. If the examiner believes that asbestos exposure or smoking is the more likely cause of the Veteran’s post-service lung cancer, he or she should thoroughly explain the medical reasons for that conclusion. If he or she finds it impossible to say, without speculating, whether asbestos exposure or smoking is the most likely cause of the Veteran’s lung cancer, the examiner should clearly say so. If the examiner reaches that conclusion, he or she should provide a statement as to whether there is additional information that would enable the examiner to provide the assign a higher probability to one potential cause or whether the requested opinion is beyond the limits of medical knowledge. 2. The AOJ must review the opinion and ensure that it complies with the directives of this remand. If the opinion is inadequate in any way, the AOJ should consider the need for corrective action, for example by returning the report to the expert with a request for an addendum opinion or, if the expert's response indicates that a person with different expertise would be better able to answer the question above, by requesting that a different expert with different qualifications answer some or all of the parts of the report which the first expert could not answer. 3. The AOJ should readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.