Citation Nr: 20046029 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 18-07 797 DATE: July 9, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active military service from May 1958 to March 1960. He died and the appellant in this appeal is his surviving spouse. This matter initially came before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision. In January 2019, the Board denied entitlement to service connection for the cause of the Veteran’s death and entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. §§ 1151 and 1318. The appellant appealed this denial to the United States Court of Appeals for Veterans Claims (CAVC). In April 2020, the Court set aside the Board’s January 2019 decision, in part, and remanded the case to the Board for readjudication in compliance with directives specified in a March 2020 Joint Motion filed by counsel for the Veteran and VA. The parties to the Joint Motion specified that they only sought remand as to that portion of the Board’s decision in which the Board denied service connection for the cause of the Veteran’s death (DIC under the provisions of 38 U.S.C. § 1310). Entitlement to service connection for the cause of the Veteran’s death is remanded. As noted above, this claim was remanded by CAVC in April 2020 for action consistent with the terms of the parties’ Joint Motion. The parties to the Joint Motion agreed that the Board erred in its January 2019 decision when it: 1) relied on an inadequate VA medical opinion regarding the cause of the Veteran’s death; 2) failed to adequately explain its reasons and bases for assigning “very low probative value” to the private medical opinions submitted by the appellant; 3) failed to fulfill its duty to assist by failing to seek clarification regarding whether the Veteran’s private physicians had access to his service treatment records (STRs) or medical records prior to 2001; and 4) weighed the private medical opinions under a mistaken factual premise. See 03/31/2020 Joint Motion. The parties to the Joint Motion agreed that the Board erred by relying on an inadequate VA medical opinion, in which a VA physician based her negative nexus opinion on a misidentification of the Veteran’s cause of death. Specifically, the December 2017 VA physician’s rationale was that the Veteran was a smoker until his mid-60s, and smoking is the number one cause of chronic obstructive pulmonary disease (COPD) and a known carcinogen. See 12/11/2017 VA medical opinion. However, the Veteran’s death certificate indicates that the Veteran’s sole cause of death was an acute myocardial infarction, not COPD or cancer. Furthermore, the VA physician failed to show consideration of the three positive nexus opinions of record (i.e., an April 2016 letter from physician T.J. Spaedy, a December 2016 letter from physician J.R. Sparks, and an April 2017 letter from physician G. Renner). These physicians have suggested that the Veteran had medical problems other than cardiac disability that may have also contributed to his death (including respiratory disability, hypertension, and diabetes), and that the Veteran’s cause of death may be related to his exposure to airborne contaminants while performing demolition work in service. Accordingly, the Board will not proceed with final adjudication of this claim until a competent medical opinion with supporting rationale is obtained that adequately addresses the cause of the Veteran’s death and whether his cause of death was linked to his active military service. Therefore, consistent with the terms of the March 2020 Joint Motion, on remand, the agency of original jurisdiction (AOJ) should obtain an addendum medical opinion that adequately addresses the nature and etiology of the Veteran’s cause of death and shows adequate consideration of the three private medical opinions of record. Furthermore, the parties to the March 2020 Joint Motion agreed that the Board committed a duty to assist error by failing to seek clarification as to whether the three physicians who authored the private medical opinions of record had access to the Veteran’s STRs or medical records prior to 2001. Pursuant to 38 U.S.C. § 5103A(a), VA "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." In Savage v. Shinseki, 24 Vet. App. 259, 269 (2011), CAVC stated that: pursuant to section 5103A(a), when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either: 1) ask the private examiner to clarify the report; 2) request that the claimant obtain the necessary information to clarify the report; or 3) explain why such clarification is not needed. Any request for clarification to a private examiner or to a claimant should clearly indicate what further action needs to be taken to make the insufficient private examination report acceptable for VA consideration. CAVC further stated that "our holding is limited to those instances in which the missing information is relevant, factual, and objective that is, not a matter of opinion and where the missing evidence bears greatly on the probative value of the private examination report." Id. Accordingly, the Board finds a remand is also required for the AOJ to seek clarification as to whether each of the aforementioned physicians had access to the Veteran’s STRs or medical treatment records prior to 2001 when they wrote their respective medical opinions. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA or identified private treatment records relevant to the claim on appeal. 2. Contact Dr. Renner (author of the April 2017 medical opinion), Dr. Sparks (author of the December 2016 medical opinion), and Dr. Spaedy (author of the April 2016 medical opinion) and ask each physician to indicate whether or not they had access to the Veteran’s STRs or medical treatment records prior to 2001 when writing their respective medical opinions. Ask the appellant for any necessary assistance in obtaining this clarification, to include obtaining any necessary authorization from the appellant in order to conduct this development. All efforts to obtain this information must be documented in the claims file. 3. After all efforts have been exhausted to obtain any additional records, including the clarification from the private physicians identified above, the AOJ should obtain an addendum medical opinion from an appropriate VA clinician concerning the nature and etiology of the Veteran’s cause of death, to include its potential relationship or correlation with the Veteran’s demolition and explosives duties and conceded exposure to dust and airborne particles in service. The VA clinician must review all relevant evidence, including a complete copy of this remand, the March 2020 Joint Motion, VA and private medical opinions regarding the Veteran’s cause of death, his STRs, and his VA treatment records. Based on a review of this evidence, the VA clinician must provide an opinion on the following questions: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory disability, diabetes mellitus, and/or hypertension contributed significantly or materially to cause his death (e.g., hastened death or rendered him less capable of resisting the conditions that caused death)? b. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s fatal cardiac disability (1) began during service; or (2) was related to an in-service injury or disease, to include his demolition and explosives duties, and his conceded in-service exposure to dust and airborne particles? c. If any disability other than cardiac disability contributed significantly or materially to cause the Veteran’s death (including, but not limited to, respiratory disability, diabetes mellitus, and hypertension), is it at least as likely as not (50 percent probability or greater) that the disability (1) began during service; (2) manifested within one year after discharge from service (in the case of any fatal hypertension or diabetes mellitus); or (3) was related to an in-service injury or disease, to include his demolition and explosives duties, and his conceded in-service exposure to dust and airborne particles? The clinician must provide reasons for each opinion given. In this regard, the clinician must acknowledge and discuss the April 2016, December 2016, and April 2017 medical opinions from Dr. Spaedy, Dr. Sparks, and Dr. Renner. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont, Law Clerk 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.