Citation Nr: 21009022 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-26 918 DATE: February 18, 2021 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The appellant is the surviving spouse of a Veteran who had honorable active duty service from June 1972 to April 1981 and from July 1981 to April 1985. He also served on active duty from April 1985 to January 1990 but was separated in lieu of Court Martial under other than honorable conditions. An unappealed May 2016 Administrative decision found the character of service for the period beginning April 17, 1985 to be dishonorable (and not qualifying for VA compensation benefits). The Veteran died in October 2015. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision. In October 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. The appellant contends, in part, that the Veteran was exposed to asbestos during his military service, and that such exposure contributed to cause his death in October 2015. The Veteran’s death certificate (first received by VA in November 2015 ) shows that the immediate cause of his death was metastatic lung cancer, and listed as significant conditions contributing to his death segment elevation myocardial infarction (STEMI) and hypertension. However, in March 2020 appellant submitted a certified copy of the Veteran’s death certificate signed October 23, 2015 (and such document is purportedly a final copy of the certificate submitted in November 2015) that lists the primary cause of death as metastatic lung cancer and significant conditions contributing to death as asbestos (as opposed to asbestosis, a lung disorder), high blood pressure and segment elevation myocardial infarction (STEMI). [The Board notes that although the Supplemental Statements of the Case (SSOCs) issued after the January 2020 Board remand seem to indicate that the evidence and statements submitted by the appellant were reviewed, it does not seem that the Regional Office (RO) noticed that “asbestos” had been added as a significant condition contributing to death on the Veteran’s death certificate.] The Veteran had not established service connection for any disability. The Veteran’s DD Form 214 and service personnel records show that he served in the Navy and that his military occupational specialties (MOSs) were yeoman, seaman, and recruiter/career counselor. These MOSs are considered by the service department to involve only minimal exposure to asbestos. A July 2015 private chest X-ray suggested bilateral interstitial fibrosis. The provider opined that the fibrosis was causally related to asbestos provided that the Veteran’s exposure history and period of latency were appropriate. A September 2015 private medical opinion notes that the Veteran reported exposure to asbestos while working as an insulator on the U.S.S. Orion from 1972 to 1977 and that he smoked 20 cigarettes a day for 40 years until he stopped smoking in 2012, and that his lung cancer was diagnosed in March 2015. The provider opined that the Veteran’s exposure to asbestos contributed to the development of his primary lung cancer, explaining that epidemiology studies demonstrated an increased incidence of certain cancers inpatients who had significant exposure to asbestos. [After the Veteran’s death, the appellant received funds from various settlements as part of a class action asbestos lawsuit; the September 2015 opinion was used to support such claim]. The opinion is inadequate for rating purposes because it is not clear how much of the Veteran’s medical record was reviewed (it is only noted that the medical records provided were reviewed), his cancer was not identified as one of the “certain cancers,” and the extent of the Veteran’s exposure to asbestos considered appears to have been based solely based on his self-reported history. Notably, in a September 1980 asbestos medical surveillance form, the Veteran reported that prior to and during his Navy career he was not exposed to asbestos dust during rip-out operations and had not worked regularly with asbestos or asbestos products. However, in a March 2015 asbestos client questionnaire, he reported that while on the U.S.S. Orion from 1972 to 1977, he often replaced tile and assisted in bulkhead insulation removal. He also reported that during the same time, the ship was dry-docked in Guantanamo Bay, Cuba for 30 days for a retrofitting and that he assisted in tile removal. His own reports of the extent of his exposure to asbestos are conflicting, and development to clarify that matter is needed. Proper development of a claim of service connection for a disease claimed to be due to exposure to asbestos includes ascertaining: (i) the nature and extent of exposure to asbestos in service, if any; (ii) the nature and extent of exposure to asbestos prior to, and following, service, if any; (iii) whether or not the Veteran has [had] an asbestos-related disease; and, (iv) whether the asbestos-related disease is related to exposure to asbestos in service. Although the record suggests that the Veteran had at least a minimal amount of exposure to asbestos in service, there has not been a formal finding regarding the extent of such exposure. A January 2020 Board remand directed that development for such information be completed. Unfortunately, the appellant did not respond to an April 2020 VA letter requesting information regarding the Veteran’s asbestos exposure; she should be afforded another opportunity to respond on remand. The June 2020 VA opinion provided in response to the January 2020 Board remand, is inadequate. Instead of opining whether the Veteran’s exposure to asbestos during service resulted in a disability that caused, or materially contributed to cause, his death, the provider essentially only opined that he did not find that the Veteran had any regular exposure to asbestos during service. He explained that the Veteran on one occasion stated he had no exposure to asbestos, and then on another occasion he stated he helped wrap asbestos material around pipes. The provider also noted that a lung biopsy did not find any asbestos fibers, that usually asbestos cancer is mesothelioma, a biopsy showed metastatic lung cancer secondary to undifferentiated stage 4, small cell cancer, and that the Veteran had a long history of cigarette smoking, which is a huge risk factor for lung cancer. The provider also did not express agreement or disagreement with the September 2015 private provider’s opinion. Therefore, a remand to obtain an adequate (fully responsive to remand directives) medical advisory opinion is necessary. The matter is REMANDED for the following: 1. Arrange for all development necessary to properly adjudicate a claim based on exposure to asbestos and make formal findings of fact for the record regarding the nature and extent of the Veteran’s exposure to asbestos during and after service (specifically addressing his allegations of exposure while working on Navy ships removing insulation and tiles). The appellant must assist in this matter by providing any identifying information and authorizations for VA to obtain non-federal-government records. 2. Then, arrange for the Veteran’s claims file to be forwarded to an appropriate VA clinician (other than the June 2020 provider) for review and an opinion addressing whether it is at least as likely as not (a 50 percent or better probability) that his exposure to asbestos during service resulted in a disability that caused, or materially contributed to cause, his death. The opinion should cite to supporting factual data (noting the Veteran’s 40-year smoking history, the notation on the Veteran’s death certificate that asbestos was a significant condition contributing to death, and that he was apparently a beneficiary of a settlement for benefits based exposure to asbestos) and medical principles, and should include rationale that addresses (expresses agreement or disagreement with, including rationale) the September 2015 private provider’s opinion (with explanation for any disagreement). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.