Citation Nr: 18148230 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-01 366 DATE: November 7, 2018 REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to September 1969. This matter first came before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in June 2006. The appellant is the Veteran’s surviving spouse. A hearing was held before the undersigned with the appellant and representative on April 3, 2017. A December 2017 Board decision denied the Veteran’s claim which was appealed to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2018 order pursuant to a Joint Motion for Remand, the CAVC remanded the Veteran’s claim for service connection for cause of the Veteran’s death to the Board for readjudication. 1. Entitlement to service connection for cause of the Veteran's death is remanded. 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 either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as cardiovascular disease, if manifested to the required degree within a prescribed period from the Veteran’s separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309, 3.310(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected 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. 38 C.F.R. § 3.312. The Veteran died in 2006, 45 years after his discharge. It has been conceded that during service in Vietnam the Veteran was exposed to herbicide agents. Initially the Veteran’s death certificate listed pneumonia and dementia as the two primary causes of death. However, an autopsy showed that the Veteran also had renal cell carcinoma, which was undiagnosed and untreated. A VA opinion dated March 2016 stated in pertinent part that it was an overstatement to suggest that the carcinoma caused or contributed to his death by causing cardiomyopathy or pneumonia especially absent clinical data or a clinical evaluation. The examiner went on to state that renal cell carcinoma is not one of the presumptive conditions secondary to herbicide agent exposure in Vietnam and instead pointed to the Veteran’s history of smoking and hypertension as more likely cause of carcinoma. In a private medical report dated March 2017 the Veteran’s personal physician asserted that the Veteran’s carcinoma contributed to his death but that its symptoms were masked by the Veteran’s dementia. The doctor stated it was his understanding that Agent Orange has now been associated with development of renal neoplasms in later life and went on to opine that the carcinoma was likely associated with the Veteran’s exposure to herbicides and was the proximate cause of his death. No rational was provided for the opinion. Further, in April 2017 the Veteran’s doctor amended his death certificate to state that renal cell carcinoma was the primary cause of his death and that dementia and pneumonia were contributing causes. While the VA examiner’s opinion lays out clear rationale as to why the Veteran’s renal cell carcinoma was not a contributing cause of his death, it was given at a time when pneumonia and dementia were believed to be the primary causes. The analysis does not take into account the change in the primary cause of death to renal cell carcinoma alone. Nor does the analysis go into detail as to whether the Veteran’s carcinoma had its onset while in service or was due to his exposure to herbicide agents. An addendum to the opinion addressing these issues and the amended Death Certificate the Board is necessary. In addition, the examiner should address whether the Veteran had a diagnosis of ischemic heart disease. The matter is REMANDED for the following action: 1. Obtain an addendum to the March 2016 VA medical opinion from the examiner who provided that opinion or a suitable substitute. The examiner should provide the following opinions: a. Whether it is as least as likely as not that the Veteran’s renal cell carcinoma was the primary cause of his death and if so whether it had its onset during service or is otherwise due to service to include his exposure to herbicide agents in Vietnam. The examiner should address the amended death certificate submitted in April 2017 which shows that renal cell carcinoma was the immediate cause of the Veteran’s death and the private medical opinion submitted in April 2017 and dated in March 2017 from Dr. J. M. b. Whether it is as least as likely as not that the Veteran had ischemic heart disease prior to his death. The examiner should address the November 2013 medical opinion that indicated that the Veteran’s autopsy showed ischemic heart disease. (Continued on the next page)   The examiner should provide a rationale for each opinion rendered. K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Luby, Associate Counsel