Citation Nr: 22008331 Decision Date: 02/14/22 Archive Date: 02/14/22 DOCKET NO. 17-09 849 DATE: February 14, 2022 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to April 1986. He died in December 2015; the appellant is his surviving spouse. The appellant testified at a virtual hearing under the undersigned Veterans Law Judge in April 2021. A hearing transcript is of record. Following the hearing, the Board of Veterans Appeals (Board) remanded this case in June 2021 to complete further evidentiary development. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran's death certificate shows he died in December 2015 at the age of 67. The immediate cause of death was multiple organ failure due to sepsis, chronic obstructive pulmonary disorder (COPD), and chronic systolic congestive heart failure. At the time of the Veteran's death, he was service connected for traumatic arthritis of the right knee with replacement, low back strain with degenerative changes, fracture right femur with degenerative joint disease and 34 shortening of leg, traumatic arthritis of the right ankle, generalized skin condition pityriasis lichen nodes, tinnitus, bilateral hearing loss, right knee surgical scar and right hip limitation of flexion. Although it is not shown that the Veteran was service-connected for any of his death-causing disabilities, the appellant essentially contends the Veteran's exposure to herbicide agents and asbestos in service caused illnesses which in turn ultimately caused his death in December 2015. See February 2017 VA Form 9; see April 2021 Hearing Transcript. Specifically, the appellant contends the Veteran was exposed to asbestos by his duties performed as a serviceman on various ships (in artillery units) as well as by exposure to herbicide agents, including eating food that absorbed the chemicals. See November 2016 Statement in Support of the Claim. Following the June 2021 Board remand, VA medical opinions were obtained to address the nature and etiology of the Veteran's death. In a July 2021 VA medical opinion, following a review of the medical records, the examiner opined it was less likely than not that the Veteran's multiple organ failure due to sepsis, COPD or chronic systolic congestive heart failure was etiologically related to any incident of service, to include in-service herbicide agents and/or asbestos exposure. The examiner noted the Veteran had a long history of significant smoking and found this to be the most likely cause of the COPD, which was also the greatest risk factor for the development of sepsis. The examiner also found the congestive heart failure to be likely due to a combination of hypertension, atrial fibrillation, morbid obesity, and coronary artery disease (due to hypertension). Given the Veteran had more primary risk factors and causes for the conditions that ultimately led to his death, the examiner stated the role of service, to include in-service herbicide agents and/or asbestos exposure, would not be significant. See July 2021 Medical Opinion. Subsequently, another VA medical opinion was obtained in September 2021. In that opinion, the examiner noted the Veteran's listed causes of death and stated that herbicide agents were not an established primary etiology of any of the causes of death listed on the death certificate (in the absence of coronary artery disease which had not been identified in the Veteran's case). The examiner further stated with respect to COPD that while prior asbestos exposure represents a risk factor for that disability, there was no objective evidence of asbestos exposure having occurred during service. See September 2021 Medical Opinion. In December 2021 written argument, the appellant's representative took issue with the finding that the Veteran was not exposed to asbestos in service and requested another medical opinion to "assess the asbestos exposure [the] Veteran had during his long military career and how it affected the development of COPD which was one of his listed causes of death." See December 2021 Appellate Brief. In support of that request, the appellant's representative noted that during his service, the Veteran served in artillery units and, citing to an online resource regarding asbestos and military occupation specialities (MOS), stated that artillerymen were known to "prepare and store ammunition and ensure weapons are regularly serviced and maintained. To protect themselves from burns while handling hot artillery shells and machine gun barrels, artillerymen often wore asbestos gloves." While further delay in the adjudication of this claim is regretted, the Board agrees additional development is required specifically regarding the Veteran's asbestos exposure during service. In particular, in the June 2021 Board remand, the agency of original jurisdiction (AOJ) was directed to conduct appropriate development to determine whether the Veteran was exposed to asbestos during service prior to obtaining the medical opinions. The AOJ obtained an Asbestos MOS Handout which listed the probability of exposure based on MOS codes but neither of the VA examiners addressed the Veteran's actual probability of exposure to asbestos based on the duties he performed in the artillery units. The Board notes Artillerymen are listed as "high-risk" military jobs in the Army in terms of developing asbestos-related conditions based on the online resource provided by the appellant's representative; therefore, this information must be reconciled against the Veteran's service records. Importantly, the September 2021 VA examiner indicated prior asbestos exposure represents a risk factor for COPD; therefore, whether the Veteran had exposure to asbestos during his service is an essential question to determining whether his cause of death should be service connected. Accordingly, the Board finds a remand is required for additional asbestos exposure development based on the Veteran's military duties in service and to obtain another medical opinion that addresses whether any of the Veteran's causes of death are related to his active-duty service, specifically asbestos exposure. The matter is REMANDED for the following actions: 1. Conduct appropriate development to determine whether the Veteran was exposed to asbestos during service. If more details are needed, contact the appellant to request the information. 2. Obtain another opinion from an appropriate clinician regarding whether any of the Veteran's causes of death are related to any asbestos exposure. Following a review of the claims file, the examiner must opinion as to whether it is at least as likely as not that the Veteran's multiple organ failure due to sepsis, COPD or chronic systolic congestive heart failure was etiologically related to any incident of service, to include in-service asbestos exposure. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.