Citation Nr: 20002181 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-01 260 DATE: January 9, 2020 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran had active service from June 1967 to August 1970. He died in September 2011. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, that denied the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. The Board notes an unappealed September 2012 rating decision initially denied service connection for the Veteran’s cause of death. Although the October 2015 statement of the case for the present appeal purported to reopen the issue, the record reflects VA received previously unconsidered service personnel records in February 2014, requiring de novo review of the Appellant’s claim. See 38 C.F.R. § 3.156(c). As a result, discussion of whether the claim should be reopened is unnecessary. The October 2015 statement of the case conceded the Veteran was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6)(i) during his service in the Republic of Korea. VA treatment records reveal the Veteran was diagnosed with coronary artery disease and diabetes mellitus, type II, both of which are conditions presumed to be associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). The Veteran’s death certificate notes an immediate cause of death of respiratory failure with aggressive pneumonia, chronic obstructive pulmonary disease (COPD), and congestive heart failure listed as secondary causes. The Board finds a medical opinion is necessary regarding the Appellant’s claim due to treatment records that suggest a potential relationship between the Veteran’s coronary artery disease, which is presumed to have resulted from the conceded in-service herbicide agent exposure, and the congestive heart failure that was deemed a contributory cause of his death. See 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008) (explaining VA is required to assist a claimant in obtaining a medical opinion or examination regarding a claim for service connection for cause of death whenever such an opinion is necessary to substantiate the claim). The matter is REMANDED for the following action: Obtain a medical opinion regarding the Appellant’s claim of entitlement to service connection for the Veteran’s cause of death. The selected examiner must first provide an opinion addressing whether coronary artery disease at least as likely as not (50 percent probability or greater) caused or aggravated the congestive heart failure that is listed as a secondary cause of death on the Veteran’s September 2011 death certificate. This opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If the examiner provides a positive opinion in this regard, the Appellant’s claim should be granted without further development; however, if it is determined that the Veteran’s congestive heart failure was not proximately due to, or aggravated by, coronary artery disease, the examiner must also address: (a) whether the respiratory issues, to include respiratory failure, pneumonia, and COPD noted on the Veteran’s death certificate were at least as likely as not (50 percent probability or greater) the result of his conceded exposure to an herbicide agent in service; and, if not, (b) whether coronary artery disease, diabetes mellitus, type II, and/or the Veteran’s service-connected psychiatric disability was at least as likely as not (50 percent probability or greater) a contributory cause of his death. The examiner is advised a disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. (CONTINUED ON NEXT PAGE) The examiner must provide a complete rationale to support his or her conclusions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. L. S. Kyle Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Capes, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.