Citation Nr: 21021432 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 10-28 659 DATE: April 13, 2021 REMANDED The issue of entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to March 1986. The Veteran died in May 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2017 decision, the Board denied entitlement to service connection for cause of death, denied entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151, and denied entitlement to DIC under 38 U.S.C. § 1318. The Veteran appealed that the denial of service connection for cause of death to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not challenge that part of the Board’s decision that denied entitlement to DIC under 38 U.S.C. § 1151 or DIC under 38 U.S.C. § 1318. In an August 2018 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the August 2017 decision that denied entitlement to service connection for cause of death and remanded the issue to the Board for readjudication. The Board readjudicated the issue in June 2019 and remanded the matter for further development. 1. The issue of entitlement to service connection for the cause of death is remanded. Unfortunately, there has not been substantial compliance with the Board’s June 2019 remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s cause of death is listed on his death certificate as sepsis, spontaneous bacterial peritonitis, and metastatic small cell lung cancer. Minimal exposure to asbestos during service in the Navy has been conceded. The appellant contends that the Veteran’s lung cancer was the result of asbestos exposure during service. In the June 2019 decision, the Board determined that the record contained conflicting medical opinions and remanded for a new VA medical opinion that reconciled the two competing views. Specifically, a March 2010 private pulmonary specialist opinion found lung cancer and the Veteran’s death causally related to asbestos exposure and prior history of smoking while a January 2017 VA medical opinion rendered a negative nexus opinion but determined that the autopsy revealed evidence of asbestos exposure related disease. The Agency of Original Jurisdiction (AOJ) was directed to obtain a medical opinion from a pulmonary specialist to determine the nature and etiology of the Veteran’s lung cancer and specifically consider the March 2010 private medical opinion. A new medical opinion was obtained in November 2019. The opinion was obtained from a surgeon instead of a pulmonary specialist and the clinician did not specifically address the March 2010 private medical opinion. The appellant also argues that the November 2019 opinion fails to comply with remand directives. See January 15, 2021, Third Party Correspondence. The clinician opined that any opinion stating there was a nexus between the Veteran’s death and in-service asbestos exposure was false and no medical research supports asbestos causing the claimed conditions. See December 2, 2019, VA Examination. The clinician did not consider and discuss the March 2010 clinician’s reliance on autopsy findings indicating the presence of fibrous plaque on right hemidiaphragm and mild emphysematous changes as a rationale for his conclusion that the Veteran’s lung cancer was caused, in part, by asbestos exposure. A Board remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is warranted as substantial compliance with the prior remand directives is not found. A remand is further warranted to address all theories of entitlement advanced by the appellant. In October 2019, the VA notified the appellant of the Blue Water Navy Vietnam Veterans Act of 2019 and advised her to submit a VA Form 20-0995, Decision Review Request: Supplemental Claim if the requirements were met. October 23, 2019, Notification Letter. The appellant submitted the Supplemental Claim Form on May 12, 2020. She did not check the box indicating she was withdrawing her claim from the legacy process. During this appeal, the appellant argued that in-service herbicide exposure caused the Veteran’s lung cancer. See May 18, 2010, Statement of the Case (SOC); see also April 17, 2013, Hearing Transcript. Lung cancer is one of the diseases for which presumptive service connection based on herbicide exposure is available. 38 C.F.R. § 3.309(e). The Board denied this theory of entitlement to service connection for cause of death as the evidence failed to confirm the Veteran’s actual presence on the landmass or inland waterways of Vietnam. August 11, 2017, BVA Decision. That portion of the August 2017 Board decision that denied service connection for cause of death was vacated and remanded by the JMPR. The appellant has submitted additional argument and contends that exposure to herbicides should be presumed based on service in the blue waters of Vietnam aboard the U.S.S. Kawishiwi. The record indicates that the Veteran served aboard the U.S.S. Kawishiwi from January 1974 through March 1975; however, the proximity of this ship to the offshore waters of Vietnam is unclear based upon the evidence in the file. A remand is necessary to determine whether the Veteran served in the blue waters of Vietnam and is entitled to presumptive service connection based on herbicide exposure.   The matters are REMANDED for the following action: 1. Undertake any necessary development to determine whether the Veteran’s naval service during the Vietnam era included any presence within the territorial sea of the Republic of Vietnam or any similar area identified in the Blue Water Navy Vietnam Veterans Act of 2019. If any requested records or relevant information are not available, or the search for any such records or information otherwise yields negative results, that fact must clearly be documented in the claims file. The non-existence or unavailability of such records or information must be verified, and this should be documented for the record. Required notice must be provided to the appellant and her representative. 2. After completion of directive 1, if herbicide exposure is not presumed, obtain a medical opinion from a pulmonary specialist to determine the nature and etiology of the Veteran’s lung cancer. If a pulmonary specialist is not reasonably available, an appropriate medical clinician may be selected. All attempts to obtain an opinion from a pulmonary specialist must be documented in the virtual claims file. The clinician should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that in-service asbestos exposure or any asbestos exposure related disease caused or contributed to the Veteran’s lung cancer and ultimate death. The clinician should acknowledge and discuss the autopsy findings and the conflicting medical opinions in the record, including the March 2010 private medical opinion and the January 2017 VA medical opinion. A rationale for all opinions is to be provided. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.