Citation Nr: 1822809 Decision Date: 04/17/18 Archive Date: 04/25/18 DOCKET NO. 14-30 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to June 1985. He died in April 2013, and the appellant is his surviving spouse (as determined in a July 2013 administrative decision). This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). A July 2013 RO letter informed the appellant that her claim for death pension was not considered because evidence of income and net worth was not provided on her application. In September 2013, the appellant filed a notice of disagreement with the notification/decision letter dated in July 2013, relative to the denial of death pension and DIC (Dependency and Indemnity Compensation). In July 2014, the appellant responded that she was not interested in death pension benefits and was only appealing her claim for DIC, that is, the claim of service connection for the cause of the Veteran's death on the basis that he died from "one of the presumptive illnesses caused by AO [Agent Orange]." With the withdrawal of the appeal for death pension, the DIC claim is the only issue remaining on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In DIC cases pertaining to the cause of death of a veteran, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service-connected disability, and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, VA has not obtained a medical opinion to assist in substantiating the appellant's claim, and the Board deems that an opinion is necessary. 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345 (2008). The Veteran died in April 2013. His death certificate lists the immediate cause of death as "cardiac event"; the sole listed other significant condition contributing to death but not resulting in the underlying cause was dementia. The Veteran died at home and the manner of his death was found to be natural; there was no autopsy. As such evidence was unaccompanied by any contemporaneous VA or private medical records showing treatment for a heart-related condition, the exact cause of death (i.e., whether involving heart disease pathology)remains unclear. A review of the Veteran's service treatment records found the following in relation to heart-related notations: one finding of premature ventricular contraction on an EKG when the Veteran was aged 27 (between June 1965 and June 1966); a diagnosis of tachycardia in November 1970; a history of left sided chest pain on occasion noted on periodic physical examination in June 1973; a history of chest pain and heart trouble in 1978, noted during on June 1985 service separation physical examination; and multiple other physical examinations and EKGs that showed the heart was normal. Although the appellant contends that the Veteran's cause of death was etiologically/causally linked to his exposure to herbicide agents (Agent Orange) during his military service in Thailand during the Vietnam War Era, the record as it stands does not affirmatively show either that the Veteran was exposed to Agent Orange during his active duty service or that ischemic heart disease (an enumerated disease for which the presumption of service connection for Agent Orange-exposed veterans applies) was a primary or contributory cause of death. Given the evidence of heart-related findings during service, the imprecise identification of the cause of the Veteran's death as a "cardiac event," and the possibility that the two may be connected, the Board finds the evidence insufficient evidence to decide the claim without further development. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the appellant to identify all VA and private medical care providers who may have outstanding records pertaining to the Veteran's causes of death (and to provide authorizations for VA to secure for the record complete pertinent records from all private providers identified. The AOJ should then undertake all reasonable steps to obtain all such records, notifying the appellant in writing when/if any records are unable to be procured. 2. After the above development is completed, the AOJ should arrange for the Veteran's record to be forwarded to an appropriate physician for review and an advisory medical opinion regarding the cause of the Veteran's death in April 2013. Based on the evidence of record, the consulting provider should opine whether it is at least as likely as not (a 50 percent or higher probability) that the principal or a contributory cause of the Veteran's death was: (a) related to his period of service from June 1955 to June 1985, to include the documented finding of one premature ventricular contraction on an EKG when the Veteran was aged 27 (between June 1965 and June 1966); the diagnosis of tachycardia in November 1970; the history of pain on occasion on the left side of the chest, noted during a periodic physical examination in June 1973; and the history of pain in the chest and heart trouble in 1978, noted during the Veteran's separation physical examination in June 1985; or (b) caused by, or aggravated by, his service-connected chronic low back strain, history of gastritis including temporary pyloro-spasm, scars from bilateral inguinal herniorraphies, epidermatophytosis of the feet, left ulnar neuropathy, and periodontitis. (The term "aggravation" means a permanent increase in the underlying disability, that is, an irreversible worsening of the liver condition beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms.) The consulting physician must explain the rationale for all opinions. If a medical expert consultation is deemed necessary for an opinion sought, such should be arranged. If the consulting physician is unable to provide the requested opinion without resort to speculation, the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the provider does not have the needed knowledge or training). If, for example, that there was no autopsy is identified as a deficiency in the record critical for a response to a question posed, the consulting physician should discuss the probability that an autopsy at this point would help to (a) clarify the Veteran's cause of death, and (b) determine whether or not his cause of death is either related to his period of service or caused/aggravated by service-connected disability. The consulting provider should note the following regulatory guidance. A principal cause of death means that a medical condition was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death means that a medical condition, not related to the principal cause of death, combined to cause death; 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. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability, which would include service-connected disease or injuries of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 3. If the consulting physician in #2, above, determines that an autopsy (or the procurement of other information/record) is necessary for a medical opinion sought, the AOJ should determine whether the autopsy or information/record may reasonably be obtained, and if so, make efforts to obtain it and thereafter seek an additional medical opinion that considers such relevant information. If the autopsy or information/record cannot reasonably be obtained, the AOJ should so advise the appellant and afford her opportunity to obtain it. 4. After the development requested above is completed, the AOJ should readjudicate the claim of service connection for the cause of the Veteran's death. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the appellant and her representative opportunity to respond, and return the case to the Board. 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 remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 the appellant's appeal. 38 C.F.R. § 20.1100(b) (2017).