Citation Nr: 21030573 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-27 096A DATE: May 19, 2021 REMANDED Entitlement to service connection for cause of the Veteran's death, to include as due to in-service exposure to asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1943 to January 1946 and in the United States Army from June 1948 to March 1952. Unfortunately, the Veteran died in March 2009, and the appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The appellant expressed timely disagreement with this determination, and the present appeal ensued. In May 2015, the appellant participated in an informal conference with a Decision Review Officer (DRO) via telephone, and a summary of this informal conference is associated with the file. In October 2019, the appellant presented oral testimony in support of her appeal at a hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A copy of the October 2019 hearing transcript is of record. At the hearing, the appellant asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. This request was granted on the record. In January 2020, the Board remanded the appellant's appeal for further evidentiary and procedural development. The Board's prior remand directives and the subsequent actions by the AOJ will be discussed below. The appellant's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for cause of the Veteran's death, to include as due to in-service exposure to asbestos, is remanded. In pertinent part, the Board's January 2020 remand directed the AOJ to (1) obtain the Veteran's personnel records from his first period of active duty in an effort to substantiate the appellant's assertions of in-service asbestos exposure and (2) obtain medical opinions concerning whether any primary or contributary cause of the Veteran's death was related to active duty, to include any confirmed in-service asbestos exposure. Regarding the Board' first remand directive, despite the AOJ's diligence, efforts to obtain the Veteran's personnel records from his initial period of active duty were not fruitful; however, the Board notes that this may have been duty to an administrative error. Specifically, the AOJ sent an appropriate request for these records via the Personnel Information Exchange System (PIES) in February 2020. The Veteran's file reflects that the requested records were unavailable and presumed to have been burned in the fire at the National Personnel Records Center (NPRC); however, closer inspection of this "June 2020" reply shows that such is a duplicate of the July 2015 PIES reply regarding the Veteran's second period of active duty. Based on this duplicate reply, which the Board found to be inadequate in the January 2020 remand, the AOJ (1) formally found that the Veteran's personnel records from his first period of active duty were unavailable, (2) formally found that the evidence of record was insufficient to request that the Joint Services Records Research Center (JSRRC) conduct additional research concerning whether the Veteran's second period of active duty included likely asbestos exposure, and (3) sought the requested medical opinions under the presumption that the Veteran's second period of active duty included only "minimum likely asbestos exposure." Based on this guidance, a VA physician provided unfavorable nexus opinions in December 2020. The Board notes that the acceptance of the negative July 2015 PIES reply regarding the second period of active duty in place of the requested personnel records for the Veteran's first period of active duty is wholly inadequate. Downstream from these ineffective actions, the December 2020 unfavorable opinions were based on an inadequate factual premise. The AOJ continued to deny the appellant's appeal based on the above actions and opinions in a December 2020 Supplemental Statement of the Case. Fortunately, the appellant's efforts in this regard were fruitful. Specifically, in January 2021, the appellant submitted pictures from a publication which clearly show exposed pipes above the beds in the 52-bed medical ward of the USS Repose in May 1945. These pictures are critical in determining the likelihood and level of the Veteran's in-service asbestos exposure during his initial period of active duty while serving aboard this ship as a "first aid man" during the time period reflected in the pictures. As the finder of fact, the Board concludes that these pictures provide ample evidence that the Veteran's in-service exposure to asbestos during his first period of active duty was substantial. Although this evidence was received by the AOJ prior to the appeal's recertification and transfer to the Board, the AOJ did not undertake additional actions or readjudicate such. Armed with the above finding, the Board concludes that another remand is necessary to obtain additional medical opinions based on the Veteran's likely substantial exposure to asbestos during his first period of active duty. Finally, as noted by the Board in the January 2020 remand, the record reflects a possible association between the Veteran's fatal pancreatic cancer and a February 1964 prescription for Digitalis for treatment of his extensive history of heart disease, which may have been due to his in-service asbestos exposure. In response, the VA physician stated in the December 2020 opinion that "an association is not a cause," and that medical literature did not support that a prescription of this medication could cause death due to pancreatic cancer "30 years thereafter." The Board's concludes that the December 2020 opinion is inadequate, as the stated rationale does not discuss the known side effects of digoxin the extract from the leaves of Digitalis lanata. As such, obtaining another medical opinion addressing this matter is also necessary on remand. The matters are REMANDED for the following actions: 1. The AOJ must request that the appellant identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who treated the Veteran during his lifetime, particularly for his heart and respiratory disabilities. *The Board is particularly interested in the previously sought private treatment records from Drs. Klier and Coleman. After securing appropriate release(s) from the appellant, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. The appellant must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. Thereafter, the AOJ must arrange for the Veteran's complete file to be transferred to an appropriate medical professional other than the clinician who provided the December 2020 opinions to determine the relationship, if any, between the Veteran's death and his active duty, to include any verified in-service asbestos exposure. After a review of the complete file, the examiner if requested to address the following: a. Is it at least as likely as not that the Veteran's fatal acute ascending cholangitis, pancreatic tumor, and/or aortic valve stenosis is/are related to any incident of his active duty, to include his significant in-service asbestos exposure during his initial period of active duty? b. Is it as least as likely as not that Digitalis, prescribed for the Veteran's heart disabilities in the 1960's and 1970's, played a part in the development of his pancreatic tumor? *In addressing the above, the examiner is asked to discuss the side effects of Digitalis, to include the noted association between Digoxin and a patient's increased probability of developing pancreatic cancer. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must readjudicate the issue of entitlement to service connection for cause of the Veteran's death. If the benefit is not granted to the fullest extent, the appellant and her representative must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.