Citation Nr: 21022002 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-41 278 DATE: April 14, 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 U.S. Navy from June 1960 to January 1964. Unfortunately, he died in September 2014. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. In March 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that in its December 2014 rating decision, the agency of original jurisdiction (AOJ) also denied entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. The AOJ again addressed that issue in its June 2016 statement of the case (SOC), and in her July 2016 substantive appeal, the appellant indicated that she wanted to appeal all of the issues addressed in the June 2016 SOC. However, at the March 2021 hearing, the appellant and her representative clarified that she only wished to pursue DIC benefits on the basis of the cause of the Veteran’s death, and not pursuant to U.S.C. § 1318. The only issue on appeal before the Board is therefore entitlement to service connection for the cause of the Veteran’s death. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Veteran’s death certificate lists the causes of his death as acute myelogenous leukemia (AML) and myelodysplastic syndrome (MDS). While the Veteran was not service connected for any disabilities at the time of his death, the appellant contends that he was exposed to lead paint, chemicals used to remove lead paint, and other chemicals in service, and that these exposures caused his AML and MDS, which in turn caused his death. At the March 2021 hearing, she and her representative expressed their belief that lead paint itself was not a contributing factor toward the diseases that caused the Veteran’s death, but that his exposure to chemicals used to remove lead paint, including methylene chloride, caused the diseases that led to his death. In support of her claim, the appellant submitted an October 2014 lay statement from H.W., the Veteran’s fellow service member. Mr. W. stated that his and the Veteran’s duties included the removal of lead paint from exterior surfaces of ships and placing chalk under aircraft while preparing for takeoff, and that this required them to be positioned under the landing gear, exposing them to many hazardous conditions as well as toxic flames and fumes. The appellant also submitted an article in October 2014 regarding how lead was previously used and what its health effects were. Following the March 2021 hearing, she submitted two additional articles dated June 2010 and August 2010. The June 2010 article addresses lead exposure in ship overhaul facilities during paint removal, and the August 2010 article addresses lead and methylene chloride exposures among automotive repair technicians. The AOJ obtained a VA medical opinion in December 2014. The examiner noted that private treatment records confirmed that the Veteran was suffering from MDS which lead to the development of AML, and that these diseases were the causes of death listed on his death certificate. The examiner offered a negative nexus opinion, however, stating that it was less likely than not that the Veteran’s conceded in-service exposure to lead-based paint, or any other material consistent with service as an airplane mechanic in the 1960s, contributed to his death substantially and materially, that it combined to cause death, or that it aided or lent assistance to the production of death. He reasoned that on a thorough review of medical literature in that regard, he was unable to find any plausible link between exposure to lead-based paint and the development of MDS or AML in the future. He noted that high lead levels in the body could cause bone marrow damage, which could cause anemia, but that that was not synonymous with MDS and AML cancer conditions, which on medical literature review had not been known to be caused from remote lead exposure. Inasmuch as the December 2014 VA examiner was unable to consider the June 2010 and August 2010 medical articles on lead exposure in ship overhaul facilities and lead and methylene chloride exposures among automotive repair technicians, the Board finds that a remand for an addendum opinion considering this evidence is warranted. The Board also finds that the VA examiner should consider the appellant’s contention that it was not exposure to lead paint itself, but exposure to the chemicals used to remove lead paint that caused the Veteran’s AML and MDS. It is also unclear from the VA opinion itself whether the VA examiner considered Mr. W.’s October 2014 lay statement or the October 2014 article regarding the health effects of exposure to lead. On remand, the Board finds that the VA examiner should consider all of this evidence in formulating his opinion. This matter is REMANDED for the following action: 1. Arrange to provide the record on appeal to the VA examiner who provided an etiological opinion regarding the cause of the Veteran’s death in December 2014. The examiner should review the expanded record. After reviewing the expanded record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable), that the Veteran’s exposure to chemicals and/or toxic fumes in service, to include those used to remove lead paint, caused, contributed substantially or materially to, or hastened, the Veteran’s death. In so doing, the examiner should consider Mr. W.’s October 2014 lay statement, and the June 2010, August 2010, and October 2014 articles regarding lead exposure in ship overhaul facilities during paint removal, lead and methylene chloride exposures among automotive repair technicians, and the health effects of lead paint generally. If the December 2014 VA examiner is no longer employed by VA, or is otherwise unable to provide the requested information, arrange to obtain the requested information from another qualified VA clinician. A complete rationale for all medical opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the appellant’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.