Citation Nr: 22017659 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-37 550 DATE: March 25, 2022 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to September 1981. The Veteran died in June 2000. The Veteran was not service connected for any disabilities at the time of his death. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In December 2021, the Appellant provided sworn testimony before the undersigned Veterans Law Judge at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Appellant's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for cause of death is remanded. The Appellant seeks entitlement to service connection for the cause of her husband's death. The Veteran's death certificate indicates that he died from respiratory failure and overwhelming sepsis, with the significant condition of hypotension. At the December 2021 Board hearing, the Appellant alleged that the Veteran died because of complications from a bone marrow transplant to treat chronic myelogenous leukemia (CML). The Appellant alleged that the Veteran developed CML due to in-service exposure to ionizing radiation and asbestos during his service as a submariner. Initially, the Board notes that the Appellant has submitted no medical evidence demonstrating that the Veteran was diagnosed with CML, or that a bone marrow treatment resulted in complications that ultimately led to his death. The absence of such evidence frustrates the Board's ability to assess the veracity of the contentions on appeal. At the December 2021 Board hearing, the Appellant testified that the Veteran did not utilize VA healthcare and his condition was treated exclusively by non-VA healthcare providers, to include the University of Pennsylvania. In September 2014, the Appellant submitted a VA Form 21-4142 seeking the RO's assistance in obtaining relevant evidence from the University of Pennsylvania, but it appears that the RO took no action on this request, resulting in a duty to assist error. See 38 C.F.R. § 3.159(c)(1). Upon remand, the RO is requested to contact the Appellant and request that she identify all relevant outstanding non-VA medical records regarding the Veteran's diagnosis and treatment for CML, to include his bone marrow transplant and end-stage medical care. If the Appellant provides authorization for VA to obtain the relevant records from the University of Pennsylvania, and any other non-VA treatment provider, the RO must undertake appropriate efforts to obtain the medical records for evidentiary consideration. The Appellant has alleged that the Veteran was exposed to ionizing radiation and asbestos during his in-service duties as a submariner cryptologist. The Veteran's DD Form 214 lists his military occupational specialty (MOS) as "9151-Radioprinter Operator" and unidentified MOS code 9720. The DD Form 2014 also confirms the Veteran's training in Navy Cryptology. This in-service employment information is insufficient to adequately assess the Veteran's degree of asbestos exposure, if any, during the Veteran's period of active duty service. Upon remand, the RO is requested to undertake appropriate development to obtain the Veteran's complete service personnel records and an initial determination as to whether the Veteran's MOS would have resulted in probable exposure to asbestos. In support of the appeal, the RO obtained the Veteran's service treatment records which confirm exposure to ionizing radiation during his service aboard the U.S.S. Sea Horse and the U.S.S. Pargo. Unfortunately, it is unclear whether these are the only navy vessels/submarines the Veteran served aboard that would have exposed the Veteran to ionizing radiation. In this regard, the Board notes that the Appellant's representative asserted at the December 2021 Board hearing that the Veteran also served aboard the U.S.S. Lapon, which has not been verified by official service department records. The Veteran's service personnel records obtained upon remand should provide further information regarding the nature of the Veteran's duties and his duty locations, to include all naval vessels/submarines he served aboard. This information is necessary to fully evaluate the scope of the Veteran's in-service exposure to ionizing radiation. At the December 2021 Board hearing, the Appellant testified that the Veteran once told her that he was helicoptered from a submarine during service and treated on shore due to severe diarrhea. This allegation is not corroborated in the Veteran's service treatment records, which appear to be substantially complete. At the Board hearing, the Appellant was unable to identify the medical facility where the Veteran allegedly sought treatment or a specific date/time period (beyond a general allegation that it occurred during his active duty service) for when the event occurred. The information provided by the Appellant regarding this incident is too vague to allow for the RO to conduct a meaningful search for records related to the Veteran's claimed in-service treatment for diarrhea, and no evidentiary development shall be requested in relation to this contention. If the Veteran's non-VA treatment records are obtained and confirm treatment for CML that ultimately resulted in the Veteran's death, and the RO can confirm some degree of asbestos exposure related to the Veteran's active duty service, the RO is requested to obtain a VA medical opinion addressing any etiological connections between in-service asbestos exposure and the Veteran's development of CML. Additionally, a VA medical opinion is required to assess whether the Veteran's CML was the principle or contributory cause of the Veteran's death, as this disease was not listed on the Veteran's death certificate. See 38 C.F.R. § 3.312(a) As noted above, the record confirms the Veteran was exposed to a minimal degree of ionizing radiation during his service aboard the U.S.S. Sea Horse and the U.S.S. Pargo, although service aboard any further nuclear-powered navy vessels remains unconfirmed. Only if it is determined through the received non-VA medical records that the Veteran suffered from CML that was the principal or contributory cause of his death, further evidentiary development shall be required to address the Appellant's contention that in-service exposure to ionizing radiation caused the Veteran's CML. In this regard, the Board notes that CML is a form a leukemia, which is a disease eligible for presumptive service connection consideration under 38 C.F.R. § 3.309(d). However, there is no evidence of record suggesting, yet alone confirming, that the Veteran was a "radiation-exposed veteran" as defined within the parameters of the regulation. See 38 C.F.R. § 3.309(d)(3)(i) and (ii). Nevertheless, CML is a radiogenic disease under 38 C.F.R. § 3.311(b)(2), and assuming a diagnosis of CML is objectively confirmed by the retrieved non-VA treatment records, it will have developed within the applicable time period under 38 C.F.R. § 3.311(b)(5)(ii) ("Leukemia may become manifest at any time after exposure,"). As such, the claim may require further evidentiary development in accordance with the procedures set forth in 38 C.F.R. § 3.311. The matter is REMANDED for the following action: 1. Contact the Appellant and request that she identify all non-VA treatment providers, in addition to the University of Pennsylvania, who treated the Veteran prior to his death, to include those who diagnosed and/or treated the Veteran for CML and those who performed his bone marrow transplant and/or treated his sepsis, hypotension, and respiratory failure. Ask the Appellant to complete a VA Form 21-4142 for the identified non-VA treatment providers, to include the University of Pennsylvania. Make two requests for the authorized records from the identified non-VA treatment providers, including the University of Pennsylvania, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's complete service personnel records and make an initial determination regarding the probability that the Veteran was exposed to asbestos during the performance of his MOS' while on active duty. 3. DO NOT proceed to the following instructions until efforts to obtain all the evidence identified above have been exhausted. 4. ONLY IF a diagnosis of CML is confirmed by the receipt of the non-VA treatment records, obtain a VA medical opinion from an appropriate VA examiner addressing whether the evidence is in approximate balance (i.e., nearly equal) that the Veteran's CML was the principal or contributory cause of the Veteran's death (listed as due to respiratory failure, overwhelming sepsis, and hypotension on the Veteran's death certificate). A disability will be considered the principal (or primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death where it contributed substantially or materially, it combined to cause death, or it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. (a.) If so, and probable in-service exposure to asbestos is conceded, obtain a VA medical opinion addressing whether the evidence is in approximate balance (i.e., nearly equal) that the Veteran's CML developed because of in-service exposure to asbestos. The VA examiner's medical opinions must be supported by a complete explanatory rationale based on the examiner's medical expertise and clinical experience; current medical principles; and citations to the record, as appropriate. 5. ONLY IF a diagnosis of CML is confirmed by the receipt of the non-VA treatment records, and CML is determined to be the principle or contributory cause of the Veteran's death under 38 C.F.R. § 3.312, undertake the required development procedures as set forth in 38 C.F.R. § 3.311, with respect to the Appellant's assertion that the Veteran's CML developed as a result of exposure to ionizing radiation during his active duty service aboard nuclear-powered navy vessels. Forward the Veteran's electronic claims file, including his service department records and the Appellant's hearing testimony, to VA's Under Secretary for Health (or designee) for preparation of a radiation dose estimate in accordance with 38 C.F.R. § 3.311(a)(2)(iii). The Veteran's service treatment records contain an ionizing radiation dose estimate of 0.007 REM for the Veteran's service aboard the U.S.S. Sea Horse between March 1980 and May 1980, as well as a DD Form 1141 documenting the Veteran's in-service occupational exposure to ionizing radiation. After a positive ionizing radiation dose estimate is calculated, the claim seeking entitlement to service connection for cause of the Veteran's death must then be referred to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c) as to whether the Veteran's CML resulted from in-service exposure to ionizing radiation. The factors set forth in 38 C.F.R. § 3.311(e) must be considered. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.