Citation Nr: 18141622 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-02 579 DATE: October 11, 2018 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1971, with service in Vietnam. He died in June 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA). In October 2017, the appellant testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that the issue of entitlement to service connection for cause of death was denied in a May 2012 rating decision, based in part on the finding that the Veteran did not have coronary artery disease at the time of his death. The appellant did not appeal that decision, but instead requested reconsideration and stated she was attaching evidence from Spectrum Health. See July 2012 statement. In its January 2013 rating decision, the Agency of Original Jurisdiction (AOJ) stated that it considered new evidence from Spectrum Health that was submitted with the appellant’s July 2012 statement. While there are records from Spectrum Health in the file, there is a date stamp evidencing they were received in December 2013, rather than July 2012. That medical evidence contains a statement about the presence of calcifications in the left anterior descending coronary artery and transverse aorta. See March 2011 private treatment records. Relying on the AOJ’s statement that this evidence was in fact received in July 2012, the Board finds that new and material evidence was submitted within a year of the May 2012 rating decision, because the medical evidence from Spectrum Health is relevant and probative as to the issue of whether the Veteran had coronary artery disease when he died; thus, the May 2012 rating decision remained pending. See 38 C.F.R. § 1.56(b). As a result, the issue of whether new and material evidence has been received to reopen a previously denied claim is not before the Board. Entitlement to service connection for cause of death is remanded. As an initial matter, the appellant stated that she wanted to submit additional evidence, specifically two Board decisions, during her Board hearing. See October 2017 Board hearing. That evidence is not of record. Thus, on remand the Agency of Original Jurisdiction (AOJ) should request such evidence from the appellant. Upon his death, hospital records reflect the Veteran’s final diagnosis was cardiopulmonary arrest secondary to metastatic esophageal cancer, atrial fibrillation with rapid ventricular response, and acute gastrointestinal bleed. See June 2011 private treatment records. His death certificate reflects his cause of death was esophageal cancer. During her Board hearing, the appellant submitted two theories of entitlement: (1) the Veteran had coronary artery disease (an herbicide agent exposure presumptive disease) that contributed to his death, and (2) the Veteran’s service-connected diabetes was a contributory cause of death, because the Veteran could not undergo chemotherapy. See October 2017 Board hearing. Treatment records reflect the Veteran underwent chemotherapy prior to his death, see, e.g., May 2011 VA treatment records, but the appellant testified that he underwent blood transfusions instead. See October 2017 Board hearing. A July 2011 VA examiner opined the Veteran did not have coronary artery disease or ischemic heart disease because there was no objective testing indicating the presence of clinically significant disease, see July 2011 VA Memorandum, but a March 2008 VA examiner diagnosed coronary artery disease, see March 2008 VA examination, and private medical records reference the presence of calcifications within the left anterior descending coronary artery and transverse aorta. See March 2011 private treatment records. While a September 2014 VA examiner opined it was less likely than not that the Veteran’s esophageal cancer metastasized from prostate cancer, the appellant’s other theories of entitlement were not discussed. See September 2014 VA medical opinion. Because it is unclear whether the Veteran has coronary artery disease and there is no medical opinion relating to the appellant’s theories of entitlement, remand for a new medical opinion is necessary. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from May 2011 through June 2011. 2. The AOJ should send a letter requesting the additional evidence discussed during the October 2017 Board hearing, specifically the referenced prior Board decisions. The Veteran appellant should assist in the matter by providing the referenced additional evidence. 3. After the above development is completed, the AOJ should obtain a VA medical opinion, by an oncologist if available, to determine the nature and likely cause of the Veteran’s death. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify whether the Veteran had coronary artery disease at his time of death. The March 2008 VA examination diagnosis of coronary artery disease and March 2011 private treatment records demonstrating the presence of calcifications within the left anterior descending coronary artery and transverse aorta must be discussed. (b.) If the Veteran had coronary artery disease, was such disease at least as likely as not (50% or greater probability) a principal or contributory cause of death? Please explain why. The examiner must discuss the Veteran’s final diagnosis of cardiopulmonary arrest. (c.) Is it at least as likely as not (50% or greater probability) that the Veteran’s service-connected diabetes was a principal or contributory cause of death, specifically by impeding the Veteran’s treatment for his esophageal cancer, to include blood transfusions instead of chemotherapy? Please explain why. The examiner is reminded that a contributory cause of death is inherently not related to the principal cause of death. In determining whether the disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 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. 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel