Citation Nr: 21021906 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-07 458 DATE: April 14, 2021 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded REASONS FOR REMAND The Veteran served on active duty from December 1942 to February 1946. He died in November 1996, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an initial July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Appellant raised a motion to advance on docket due to her age in a March 2021 statement. The undersigned is granting that motion and advancing the appeal on the Board's docket pursuant to 38 C.F.R. § 20.800(c); 38 U.S.C. § 7107 (a)(2). This case was remanded in January 2020 for a VA opinion as to whether it is at least as likely as not that the disabilities that contributed to the Veteran’s death were caused by, or otherwise related to, his reported asbestos exposure during service. The opinion was produced on May 1, 2020. The examiner provided a negative nexus opinion in Section VII, Opinion Regarding Conflicting Medical Evidence of the Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner wrote in the rationale that there was no radiographic evidence to confirm a diagnosis of asbestosis. This was in response to the September 2019 private physician’s opinion submitted by the Appellant that stated, "Mr. Perrin has exposures to both cigarette smoke and asbestosis [SIC]." However, the Board notes that the examiner did not opine on whether it is at least as likely as not the claimed asbestos exposure caused the Veteran’s lung carcinoma, regardless of a diagnosis of asbestosis. The examiner’s rationale relied on the lack of evidence of a diagnosis of asbestosis from the private physician opinion. However, the examiner failed to provide a rationale regarding lung carcinoma due to asbestos without diagnosed asbestosis. The Board finds that the May 2020 VA opinion lacks an adequate rationale as to whether the disabilities that contributed to the Veteran’s death were caused by, or otherwise related to, his reported asbestos exposure during service. The examiner essentially opined on the private nexus opinion and not on the case as a whole. The examiner failed to address direct service connection and only provided an opinion regarding the conflicting medical evidence. Thus, the Board finds that a remand is required for another opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). Additionally, the prior remand requested that the RO to make an attempt to obtain any outstanding medical treatment records. As it appears that the private physician in September 2019 may have reviewed treatment records not associated with the claims file, the Board requests that on remand, the Appellant be provided the opportunity to identify any outstanding private treatment records, including those the private physician relied on for his positive nexus opinion. The matter is REMANDED for the following action: 1. Make another attempt to request from the Appellant to complete a VA Form 21-4142 for any additional private treatment records, including the records the September 2019 private physician relied upon. Complete any necessary further development. The RO should document all attempts. 2. After any outstanding records have been obtained, forward the electronic claims file, including all Board decisions, to the May 2020 examiner for another opinion as to the nature and etiology of the disabilities that contributed to the Veteran’s death. Following the review of the claims file, the VA examiner should provide an opinion, with a complete rationale, on the following: Whether it is at least as likely as not (a 50 percent probability or greater) that the disabilities that contributed to the Veteran’s death were caused by, or otherwise related to, his reported asbestos exposure during service. The examiner is not only requested to discuss the conflicting evidence of record, but to also opine and provide a rationale as to the Veteran’s claimed exposure to asbestos and the Veteran’s cause of death. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.