Citation Nr: A25035661 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240726-458818 DATE: April 17, 2025 REMANDED Entitlement to service connection for cause of 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 Air Force from February 1979 to September 1994. He died in February 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals on appeal from a September 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by VA in the adjudication of this claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for cause of death The appellant contends that the Veteran's cause of death is related to his periods of active service. The Veteran's Death Certificate reveals a cause of death of multiple organ failure and cardio respiratory arrest. At the time of his death the Veteran was service connected for left hip limitation of abduction; PO lesion left femur, tendonitis of left hip; tinnitus; and scar, residual of PO lesion left femur, tendonitis of left hip. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to the veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran's service treatment records show a September 1985 pulmonary function test with decreased values suggesting restrictive airway disease. Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, even if the primary cause is unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases primarily causing death. 38 C.F.R. § 3.312 (c)(3). Despite a September 2023 VA Toxic Exposure Risk Activity (TERA) memorandum concluding the Veteran did not participate in TERA, a December 2007 rating decision stated "[s]ervice personnel records verify you were exposed to asbestos cement in your job as a plumber, while in the service." Despite the prior RO concession of asbestos exposure in service, the RO did not obtain a medical opinion addressing the possibly relationship between in-service asbestos exposure and the Veteran's cardio respiratory arrest. The Board finds that VA's duty to obtain a medical opinion has been triggered. Under 38 U.S.C. §5103A(a), VA must provide a medical opinion where (1) the claimant requests assistance in obtaining a medical opinion, (2) the provision of a medical opinion is necessary to substantiate the claim for benefits, and (3) there exists a reasonable possibility that such assistance would in fact aid in substantiating the claim. See Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). "The statute only excuses . . . VA from making reasonable efforts to provide such assistance, if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood, 520 F.3d at 1348 (quoting 38 U.S.C. §5103A(a)(2)). In this matter, no VA examiner has opined as to whether or not the Veteran's death is related to his military service, specifically due to asbestos exposure. The Board finds that the low bar has been cleared to provide a medical opinion. See Mclendon v Nicholson 20 Vet. App. 79 (2006). The failure to obtain a VA medical opinion regarding cause of death due to asbestos exposure is a pre-decisional duty to assist error for which remand is warranted. Therefore, the Board must remand the appeal back to the RO to obtain an appropriate VA opinion on whether the Veteran's cause of death is related to in-service asbestos exposure. The matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner to address the possible relationship between in service asbestos exposure and the Veteran's death. The claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all findings. After reviewing all the evidence on file, the examiner is requested to render opinions addressing the following: (a) Whether the Veteran's cause of death, multiple organ failure and cardio respiratory arrest, was caused by or otherwise related to service, namely in-service asbestos exposure? (b) Whether the Veteran (i) had an asbestos exposure-related disease? (ii) that had onset in or is otherwise related to service? (iii) that substantially and materially contributed to his death? The examiner is also requested to comment on all relevant medical evidence in the record, as well as to acknowledge, address, consider, and discuss all lay statements of the Veteran including his reports to treatment providers, as they appear throughout the record, as well as all lay evidence of other persons, as it pertains to asbestos-exposure-related disorders. The examiner must provide a complete rationale for all opinions expressed. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adams Hill, Denise 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.