Citation Nr: 1756936 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-01 950 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from June 1950 to August 1953, and November 1953 to August 1972, including service in Vietnam. He died in March 2012, and the Appellant is his surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from an RO decision dated in March 2013 that denied service connection for the cause of the Veteran's death (which is one basis for Dependency and Indemnity Compensation (DIC)). A hearing was held in July 2016 before the undersigned Veterans Law Judge (VLJ) of the Board. In December 2016, the Board remanded this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Appellant's claim. The Appellant seeks to establish that the Veteran's death was related to service, as due to exposure to herbicides. She contends that the Veteran's terminal conditions were caused by Agent Orange exposure. She contends that the Veteran's Parkinson's disease, which is a presumptive disorder for herbicide exposure, played an etiological role in his death. In support of her claim, the Appellant submitted medical statements from Dr. F.M., and his clinical records were obtained on remand from The Longstreet Clinic. Also, on remand, a VA medical opinion was obtained. The examiner stated that based on the limited private medical records (Dr. M.'s records and the Certificate of Death), the Veteran's death was due to C. difficile sepsis leading to acute respiratory failure. At the time of his death, he also had acute kidney injury and pancytopenia. The examiner stated that medical records regarding Veteran's hospital admission and work-up prior to his death are essential in this case. However, the Board notes that these records are not contained in the record. Based on the available death certificate, the examiner indicated that four conditions listed on the death certificate are less likely related to the service, including his presumed herbicide exposure. He stated that it is less likely that his Parkinson's disease was the cause of this Veteran's death as he appeared to do well according to the November 2011 Neurology note: "Pt says his Parkinson symptoms have not progressed..." On examination, the Veteran was noted to have "normal gait and tandem and normal strength." He had mild rigidity and mild bradykinesia. This was four months prior to his death in March 2012. Based on available medical records, the examiner opined that the Veteran did not carry a diagnosis for ischemic heart disease (IHD). Therefore, it is less likely that a heart disease, including IHD was a contributory cause of death. The Board notes that this opinion is insufficient. The Veteran's Parkinson's need not have caused death, but must have at least etiologically related to the immediate or underlying causes of death or have been a contributory cause. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. § 1310 (2012); 38 C.F.R. § 3.312 (2017). 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. 38 C.F.R. § 3.312(b). In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(2). To establish service connection for a particular disability, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.304 (2017). Moreover, as noted in the Board's prior remand, the Veteran died at Northeast Georgia Medical Center, where he was an inpatient. His terminal medical records from this facility are not of record. The Board notes that another attempt must be made to obtain these records as the VA examiner indicated that they are essential in this case. Finally, the Appellant once again indicated that she had forwarded the Veteran's records to the Board, but the record does not reflect that these records were received and that they include the terminal records. The Appellant should be provided another opportunity to submit all of the records in her possession. Once all records have been received, a medical addendum should be obtained due to the deficiencies in the most recent VA opinion. Accordingly, the case is REMANDED for the following action: 1. Afford the Appellant another opportunity to submit all medical records of the Veteran's treatment including terminal medical records. 2. With any necessary releases, attempt to obtain private medical records from the Veteran's terminal hospitalization at Northeast Georgia Medical Center prior to his death in March 2012, and associate them with the record. The RO/AMC must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 3. Then, obtain a VA medical addendum opinion from a VA physician. The record must be made available to and reviewed by the examiner. The examiner should specifically respond to the following questions: With regard to each of the four causes of death listed on the Certificate of Death (acute respiratory failure, C. Difficile colitis/sepsis, acute kidney injury, and pancytopenia), the examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that each of those listed conditions had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should also opine if the Veteran had ischemic heart disease (IHD) during his lifetime. If so, the examiner should opine with regard to the IHD and the Parkinson's disease the following: (1) whether it is at least as likely as not the Veteran's IHD or Parkinson's disease contributed substantially or materially to death; (2) whether IHD or Parkinson's disease aided or lent assistance to the production of death; (3) whether IHD or Parkinson's disease resulted in debilitating effects and a general impairment of health to the extent that it rendered the Veteran less capable of resisting the effects of the causes of death; and (4) whether IHD or Parkinson's disease was of such severity as to have a material influence in accelerating death. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 5. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Appellant should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The Appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).