Citation Nr: A25035779 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240524-443599 DATE: April 17, 2025 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from January 1970 to October 1974. The Board notes that the Veteran passed away in June 2011. The Appellant is the Veteran's surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) March 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In May 2024, the Appellant submitted a VA Form 10182 Notice of Disagreement, selecting the Direct Review docket. Therefore, the Board may only consider evidence that was before the AOJ at the time of the March 2024 rating decision on appeal. The Board notes that the Appellant submitted additional evidence along with her VA Form 10182. However, the Board is prohibited from considering that evidence. 38 C.F.R. §§ 20.300, 20.301, 20.801. In June 2024, the Appellant and her representative were notified that the additional evidence could not be considered, and that they had until March 6, 2025, to submit a new VA Form 10182 for it to be considered. See June 2024 BVA Letter. Neither the Appellant, nor her representative, filed the necessary documentation, and therefore the evidence submitted in May 2024 cannot presently be considered by the Board. Since the Board is remanding the Veteran's claim for additional development, that evidence will be reviewed by the AOJ during their readjudication of the Appellant's claim. As a procedural matter, the Board notes that in May 2023 the Appellant's representative stated that squamous cell cancer of the throat is presumptively caused by, or otherwise due to, herbicide exposure of the type experienced by the Veteran. While it is likely a typo on the representative's part, the Board notes that squamous cell cancer is not presumed to be associated with herbicide exposure, nor is it considered a soft tissue sarcoma. 38 C.F.R. § 3.309(e). As such, granting the Appellant's claim on a presumptive basis is not applicable. That does not, however, preclude the Appellant from establishing service connection on a direct basis. Entitlement to service connection for cause of death is remanded. The Appellant claims that the Veteran was exposed to toxins and occupational hazards during his military service, and that these exposures led to his 2011 death from squamous cell cancer of the throat, with complications arising from pneumonia and respiratory failure. See May 2024 VA Form 10182. While the Board regrets the additional delay, for the reasons below a remand is necessary to allow the AOJ to correct a pre-decisional duty to assist error. The Veteran's personnel records show that he was aboard the USS Francis Hammond during his period of service. In this time, the Francis Hammond was stationed off the coast of the Republic of Vietnam, in what is now known as "Blue Water" pursuant to the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966. Based on this, the Veteran is presumed to have been exposed to herbicide agents during his time in the Navy. Furthermore, the Veteran's military occupational specialty (MOS) was that of yeoman, and the Appellant alleges that during his time in the Navy he was exposed to asbestos. A March 2024 VA examiner opined that the Veteran's MOS carries a minimal risk of exposure to asbestos. Thus, the Board finds that the evidence shows that he was exposed to herbicides and some level of asbestos during his period of service. In March 2024, the AOJ obtained an etiology opinion regarding the Veteran's cancer. The examiner conceded both herbicide and asbestos exposure, but primarily addressed herbicide exposure. The examiner listed several VA websites, and then stated that "there is no medical or scientific evidence that provides any indication of a relationship between the development of the conditions at issue and the [Veteran's toxic exposure]." See March 2024 C&P Exam. The examiner also noted that the Veteran had a history of smoking, which is "a risk factor for throat cancer." Id. However, the Board finds that the March 2024 examiner's etiology opinions are inadequate for adjudication for several reasons. First, the Board notes that the Veteran's non-VA treatment records indicate that he denied tobacco use. See July 2011 Medical Treatment Record. The examiner failed to address this discrepancy in his opinion. Second, the examiner's findings were conclusory. As to the Veteran's asbestos exposure, the examiner treated "minimal" exposure as equivalent to "no" exposure, which is not the same. The examiner failed to address whether even minimal exposure to asbestos could cause the Veteran's eventual throat cancer, or whether it was productive of long-term respiratory issues. Regarding the Veteran's herbicide exposure, while the examiner did state that he looked at some information, he failed to explain how that information related to the Veteran's specific set of facts. The examiner's failure to address relevant medical evidence that was contradictory to his assessment, as well as the failure to provide an adequate rationale for his conclusions, means that the examiner's etiology opinion is inadequate for adjudication. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). By relying on an inadequate VA opinion to find against the Appellant, the AOJ committed a pre-decisional duty to assist error that must be corrected upon remand. 38 C.F.R. § 20.802. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the etiology of the Veteran's squamous cell cancer of the throat, with attending respiratory complications and pneumonia. The examiner is to review the claims file, as well as these remand directives, and provide the following opinion: (a) Is it as least as likely as not that the Veteran's squamous cell cancer of the throat, with attending respiratory complications and pneumonia, is caused by, due to, or otherwise related to his military service? The examiner must address the Veteran's in-service asbestos and herbicide exposure, and must discuss the combined synergistic effective of all toxic exposure risk activities the Veteran participated in during his time in the Navy. The examiner must also address any other relevant medical and lay evidence of record, to include (but not limited to) any non-VA medical treatment records or etiological opinions. If the examiner comes to a conclusion that is contrary to any opinion in the record, the examiner must explain how and why he or she came to that contrary opinion. A full and complete rationale must be provided for all opinions rendered. If the examiner cannot provide the necessary opinions without resorting to mere speculation, they must explain why that is the case. When adjudicating the claim, the AOJ is reminded that the Appellant is entitled to the benefit of the doubt in the face of conflicting evidence of equal competency and credibility. T. V. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Neville, Mikael 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.