Citation Nr: 1605524 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 08-12 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1969 to March 1970. He died in January 2006 at the age of 57. The appellant was married to, but legally separated from the Veteran at the time of his death. The October 2014 Board determination, discussed below, reached the threshold conclusion that the appellant was the Veteran's recognized spouse for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied entitlement to service connection for the cause of the Veteran's death. In June 2007, jurisdiction was transferred to the RO in Seattle, Washington where jurisdiction of the present appeal currently rests. The appellant appeared before the undersigned Veterans Law Judge in a Travel Board hearing in Seattle, Washington in March 2010 to present testimony on the issue on appeal. The hearing transcript has been associated with the claims file. In July 2010, the Board remanded this matter for further development which has been completed. At that time, the Board characterized the issue as entitlement to Dependency and Indemnity Compensation (DIC) benefits, including service connection for the cause of the Veteran's death, accrued benefits, and death pension, to include a threshold determination of recognition as the surviving spouse of the Veteran for purposes of VA benefits. The only issue that had been perfected for appeal was service connection for the cause of the Veteran's death but the Board included the other issues under DIC as development was requested to determine whether the appellant should be recognized as the surviving spouse of the Veteran for purposes of VA benefits. Therefore, the only issue currently before the Board is service connection for the cause of the Veteran's death. In October 2014, the Board denied the appellant's claim for service connection for the cause of the Veteran's death. The appellant appealed that determination to the Court of Appeals for Veterans Claims (Court). In a November 2015 Joint Motion for Partial Remand, the parties requested that the Court vacate and remand the Board's October 2014 decision with respect to the denial of entitlement to service connection for the cause of the Veteran's death. In a November 2015 Order, the Court granted the Joint Motion. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veteran's Benefits Management System (VBMS) systems to ensure review of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The November 2015 Joint Motion properly noted that at the time of the Veteran's death he had been diagnosed with coronary artery disease (CAD) and ischemic cardiomyopathy. In addition, the Veteran had eight months of service in Vietnam during his period of service from January 1969 to March 1970 and, as such, is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6) (2015). Ischemic heart disease (to include CAD) is deemed associated with herbicide exposure, under current VA law. 38 C.F.R. § 3.309(e) (2015). Thus, the evidence supports that the Veteran could have been service-connected for CAD and ischemic cardiomyopathy at the time of his death. To warrant 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 the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a) (West 2014). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. See 38 C.F.R. § 3.312(b) (2015). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The regulations provide that service-connected diseases involving active processes affecting vital organs (such as the heart) should receive careful consideration as a contributing cause of death 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 the disease primarily causing death. 38 C.F.R. § 3.312(c)(3). Moreover, there are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. A service-connected disability is not generally held to have accelerated death unless such disability affects a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). As stated in the Joint Motion, The Veteran's death certificate lists cardiac arrest as the immediate cause of death due to respiratory arrest due to overwhelming infection due to immunocompromise. (R. at 427). The death certificate also listed "other significant conditions" that contributed to death, but did not result in the underlying cause of death (cardiac arrest) as decubitus, tracheostomy, cerebral hemorrhage, recurrent MRSA, and pseudomonas. Id. There is no discussion as to whether the Veteran's cardiac disease proximately caused or contributed to his death. 38 C.F.R. § 3.312(a). As such, remand is required for development, to include obtaining a medical opinion to determine whether the Veteran's cardiac disease caused or contributed to his death. The Joint Motion also directed that a medical opinion be obtained regarding whether the Veteran's medications to treat his service-connected schizophrenia, including Thorazine, caused or contributed to his death. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate VA medical professional for a medical opinion. A complete and detailed rationale should be given for all opinions and conclusions expressed. The opinion provider must review all pertinent records associated with the claims file (including electronic records) and provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater): (a) that CAD and/or ischemic cardiomyopathy contributed substantially or materially to the Veteran's death, combined to cause death, aided or lent assistance to the production of his death, or had a material influence in accelerating death. The reviewing medical professional should also specifically comment on whether there is any evidence of debilitating effects and general impairment of health due to CAD or ischemic cardiomyopathy that would render the Veteran materially less capable of resisting the effects of (a) respiratory arrest due to overwhelming infection due to immunocompromise, (b) decubitus, (c) tracheostomy, (d) cerebral hemorrhage, (e) recurrent MRSA, or (f) pseudomonas; and (b) that the Veteran's medication taken for his service-connected schizophrenia, including Thorazine, contributed substantially or materially to his death, combined to cause death, aided or lent assistance to the production of his death, or had a material influence in accelerating death. In reaching the above determination, the reviewing medical professional is requested to consider, and reconcile to the extent necessary, the treatise evidence submitted by the appellant suggesting an association between the use of antipsychotic medications with increased risk of cardiac death. A detailed rationale, including pertinent findings from the record, should be provided for all opinions. If any of the above issues cannot be determined on a medical scientific basis and without invoking processes related to guesses or based upon mere conjecture, the reviewing physician should clearly and specifically so specify in the medical opinion, with an explanation as to why this is so. 2. Then readjudicate the appellant's claim. If a full grant of the benefits requested is not afforded, issue a supplemental statement of the case (SSOC) to the appellant and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).