Citation Nr: 20009625 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 10-28 645 DATE: February 6, 2020 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1967 to April 1970, including service in the Republic of Vietnam for which he was awarded the Combat Action Ribbon, and from April 1982 to April 1992. He died in November 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in October 2014 to schedule the appellant for a requested hearing. The RO informed appellant that her hearing had been scheduled for April 2017. See February 2017 letter. The appellant failed to report for the scheduled hearing. As the record does not indicate the appellant has offered good cause for her failure to appear or requested that the hearing be rescheduled, the Board deems the appellant’s request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d). The Board remanded the claim once more in June 2017 for further development, and regrettably, must remand the claim once again. To the extent that the appellant’s most recent docketing letter was returned as undeliverable, the Board notes that her representative, the Pennsylvania Department of Military and Veterans Affairs, received notice and there is no updated address that has been provided by the appellant or her representative. The appellant maintains that service connection for the cause of the Veteran’s death, noted as intracerebral hemorrhage due to hypertensive cardiovascular disease, is warranted. See December 2007 Death Certificate and December 2007 VA Form 21-534. She asserts that the Veteran’s service-connected posttraumatic stress disorder (PTSD) was either the proximate cause of the Veteran’s hypertensive cardiovascular disease, or in the alternative, aggravated the Veteran’s hypertensive cardiovascular disease beyond its normal progression. See July 2010 VA Form 9. In this regard, in January 2013, a VA examiner concluded that the Veteran’s cause of death couldn’t be determined, despite it being written on the death certificate, because his hypertension appeared to be under control at the time of the Veteran’s death. The Board finds the examiner’s reluctance to accept the Veteran’s cause of death listed on the death certificate unsupported by a medical rationale, speculative, and inadequate. The January 2013 examiner also concluded that as PTSD is not an established risk factor for intracerebral hemorrhaging, that it (PTSD) was less likely than not the cause of his death. The Board notes the January 2013 examiner failed to address aggravation of a non-service-connected disability by a service-connected disability in his secondary service connection opinion and finds his opinion inadequate for that reason as well. Then, in October 2018, a VA examiner concluded that the Veteran did not have ischemic heart disease and further opined that the Veteran’s PTSD did not cause or worsen the Veteran’s hypertensive cardiovascular disease beyond its normal progression. In coming to this conclusion, the examiner relied on the January 2013 examiner’s reasoning and the opinion is likewise inadequate. The Board has a duty to consider all theories of entitlement to the benefit sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered). In this regard, the Board notes that the Veteran has confirmed combat service in the Republic of Vietnam and was concededly exposed to herbicide agents during his service. As there is a conceded in-service event and a recent diagnosis of hypertension, made as early as June 1999 (more than 8 years prior to the Veteran’s death), an addendum opinion is required. Efforts to obtain outstanding treatment records should also be made, as well as the Veteran’s autopsy report. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include any records at the Orlando VAMC and the 56th Medical Group (TAC) at MacDill Air Force Base in Florida. 2. Request a copy of the Veteran’s autopsy report through appropriate sources. If an authorization form is needed from the appellant to request such report, the appellant should be asked to provide one. If the autopsy report cannot be obtained, the claims file should be annotated to reflect such, and the appellant notified of such. 3. Then, request a medical opinion from an appropriate VA examiner. The examiner should review the entire claims file to include a copy of this remand. Then, the examiner should address the following: (1) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed hypertension: (a.) had its onset in service or is otherwise related to service, to include his conceded exposure to herbicide agents in Vietnam; (b.) is proximately due to or a result of his service-connected PTSD, to include any medications he was prescribed for PTSD; or (c.) has been aggravated (worsened beyond its natural progression) by his service-connected PTSD to include any medications he was prescribed for PTSD. In addressing question (a), the examiner should discuss the National Academy of Sciences’ most recent Veterans and Agent Orange: Update 11 (2018), released on November 15, 2018, in which hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. In addressing questions (b) and (c), the examiner should note that it is not necessary that the primary disability (PTSD) be service-connected, or even diagnosed, at the time secondary disability (HTN) is incurred and reliance on this fact in support of a negative opinion will render it inadequate. The examiner should also review and address the scholarly articles and website publications provided by the appellant in July 2010. (2) If the answer to any of the above is yes, is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertensive cardiovascular disease (which caused intracerebral hemorrhaging): (a) is proximately due to his service-connected hypertension; (b) was aggravated (worsened beyond its natural progression) by his service-connected hypertension. In addressing these questions, the examiner should note that it is not necessary that the primary disability (HTN) be service-connected, or even diagnosed, at the time secondary disability (hypertensive cardiovascular disease) is incurred and reliance on this fact in support of a negative opinion will render it inadequate. (3) If the answer to questions (1)(a)-(c) and (2)(a)-(b) is no, please also opine as to whether it is at least likely as not (50 percent or greater probability) that the Veteran’s PTSD: (1) singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto; (2) contributed substantially or materially to the Veteran’s death; (3) combined with another disorder to cause death; and/or (4) aided or lent assistance to his death. In rendering this opinion, please specifically address the effects of his PTSD on a vital organ, and whether the service-connected PTSD had debilitating effects and general impairment of health that would render the Veteran less capable of resisting the effects of other disease or injury primarily causing death. A complete rationale must be given for all opinions and conclusions expressed. If the examiner is unable to opine without resorting to speculation, he or she should offer a rationale for reaching that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.