Citation Nr: 18149958 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-40 261A DATE: November 14, 2018 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1945 to October 1949. He died in November 2013. The Appellant is the Veteran’s surviving spouse. The Board is grateful for the Veteran’s service to our nation and extends its condolences to the Veteran’s surviving spouse and family members. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA). The Appellant testified before the undersigned Veterans Law Judge in October 2017. The transcript has been associated with the record. This matter was previously before the Board in January 2018. At that time, the Board remanded the issue on appeal for further development. Regrettably, another remand is necessary. 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Veteran’s death certificate lists his immediate cause of death as cardiac dysrhythmia due to hypertension and arteriosclerosis, with diabetes mellitus and prostate cancer contributing. The Veteran was not service connected for any of these conditions, but was service connected for posttraumatic stress disorder (PTSD), rated as 100 percent disabling, and asbestos-related pulmonary disease, rated as 10 percent disabling. The lungs are vital organs. Pertinent VA regulations provide that when a service-connected disability involves an active process affecting a vital organ, it may be considered a contributory cause of death, even when the primary cause of death appears “unrelated” to that disability, if the service-connected disability results in “debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.” 38 C.F.R. § 3.312(c)(3); see also 38 C.F.R. § 3.312(a) (providing that a death will be service connected where a service-connected disability was either the principal or a contributory cause of death); 38 C.F.R. § 3.312(c)(1) (providing that, to be a contributory cause of death, the disability must have “contributed substantially or materially” to death, “combined to cause death,” or “aided or lent assistance to the production of death.”). Therefore, one of the central issues in this case is whether the Veteran’s service-connected asbestos-related pulmonary disease was a contributory cause of his death. In January 2018, the Board remanded this issue, in relevant part, for a medical opinion that addressed whether the Veteran’s service-connected asbestos-related pulmonary disease made the Veteran materially less capable of resisting the effects of other diseases or injuries primarily causing death, and whether it had a material influence in accelerating his death. The VA medical opinion received on August 23, 2018, inadequately addressed these questions. The VA medical opinion received on August 31, 2018, did not touch on these questions; rather, it focused on whether the Veteran’s service-connected PTSD caused or aggravated his cause of death which was a separate basis for the remand. The opinions rendered on the possible link between the Veteran’s PTSD and his death appear to have adequately addressed that issue. An August 23, 2018 opinion concluded that asbestos-related pulmonary disease is not an established “cause of” coronary artery disease and that the asbestos related pulmonary disease did not substantially affect the Veteran’s health. This seemingly discounts evidence demonstrating severe shortness of breath with oxygen therapy secondary to his asbestosis. See April 2009 VAX (noting that the Veteran was on oxygen therapy occasionally during the day, although primarily at night, “because of his severe shortness of breath secondary to his asbestosis.”); but see Mountain Home VAMC Records (showing that the oxygen therapy was due to his nonservice-connected COPD: Aug. 27, 2010; Oct. 9, 2011; July 26, 2012; Apr. 17, 2013; Sept. 9, 2013); see also (Apr. 17, 2013) (pulmonary clinic note showing the Veteran requires oxygen due to his severe COPD, severe ischemic cardiomyopathy with ejection fraction of 10-15%, obstructive sleep apnea, and chronic nocturnal hypoxia). To the extent the VA clinician attributed the required use of oxygen to his nonservice-connected COPD, the clinician did not explain why. In this regard, clarification should be obtained as to whether the oxygen requirement was due to his service-connected asbestos-related pulmonary disease or some other condition(s). Additionally, the August 23, 2018 opinion ignored the fact that the Veteran was in hospice care for several months prior to his death due to his severe heart and lung conditions, and asbestosis was mentioned as one of the causes of his terminal pulmonary condition. See May 2014 VA Medical Opinion. The August 23, 2018 opinion failed to explain how the Veteran’s severe shortness of breath which worsened with exertion, and any other asbestos-related pulmonary symptoms, did not result in “debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.” The opinion also failed to explain how the asbestos-related pulmonary disease did not aid or lend assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). For these reasons, the August 23, 2018 opinion is inadequate. The matter is REMANDED for the following action: 1. Obtain another medical opinion from an appropriate clinician (preferably a pulmonologist) regarding the claim for service connection for the cause of the Veteran’s death. Following a review of the claims folder, the examiner must address the following: (a.) Whether the Veteran’s oxygen requirement was due to the Veteran’s service-connected asbestos-related pulmonary disease or some other condition? Compare April 2009 VAX (noting that the Veteran was on oxygen therapy occasionally during the day, although primarily at night, “because of his severe shortness of breath secondary to his asbestosis.”), with Mountain Home VAMC Records (showing that the oxygen therapy was due to his nonservice-connected COPD: Aug. 27, 2010; Oct. 9, 2011; July 26, 2012; Apr. 17, 2013; Sept. 9, 2013); but see id. (stating that the Veteran was on home oxygen due to his congestive heart failure); see also (Apr. 17, 2013) (pulmonary clinic record stating the Veteran requires oxygen due to his severe COPD, severe ischemic cardiomyopathy with ejection fraction of 10-15%, obstructive sleep apnea, and chronic nocturnal hypoxia). Rationale must be provided for the opinion proferred. (b.) Whether it is at least as likely as not that the Veteran’s asbestos-related pulmonary disease and related symptomology, including severe shortness of breath and dyspnea on exertion with possible oxygen dependency, contributed to the cause of his death? See May 2014 VA Medical Opinion (stating that the Veteran died from the natural progression of his severe and terminal congestive heart failure (CHF) and COPD conditions). Rationale must be provided for the opinion proferred. (c.) Whether it is at least as likely as not that the Veteran’s asbestos-related pulmonary disease and related symptomology, including severe shortness of breath and dyspnea on exertion with possible oxygen dependency, resulted in debilitating effects and general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of other diseases or injuries primarily causing his death? Rationale must be provided for the opinion proferred. (d.) Whether it is at least as likely as not that the Veteran’s asbestos-related pulmonary disease and related symptomology, including severe shortness of breath and dyspnea on exertion with possible oxygen dependency, aided or lent assistance to the production of death? Rationale must be provided for the opinion proferred. Please note that, pursuant to 38 C.F.R. § 3.312(c)(3), a service-connected disability involving an active process affecting a vital organ (such as lungs) may be considered a contributory cause of death, even when the primary cause of death appears “unrelated” to that disability, if the service-connected disability results in “debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.” U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel