Citation Nr: 20049946 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 10-09 777 DATE: July 28, 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 from November 1979 to March 1980. He died in August 2008. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2013, the Veteran testified before a Veterans Law Judge (VLJ). A hearing transcript is associated with the file. The Board remanded this matter in May 2014 and June 2017 for further development to include obtaining a VA medical opinion and addendum in this matter. The matter has returned to the Board for further appellate review. The Board finds that there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Appellant contends that the Veteran’s heart condition, that was a contributory cause of his death is the result of either in-service aggravation of a preexisting congenital disease or an injury to a congenital defect. She argued that the Veteran was initially diagnosed with Barlow’s syndrome, a common abnormality of the mitral valve of the heart, in service and that he continued to have chronic heart problems, including the cardiomyopathy that contributed to his death since service. In May 2014 the Board remanded this appeal for additional development to include obtaining a VA medical opinion. A VA medical opinion was obtained in October 2016 and an addendum was obtained in November 2016. In June 2017 the matter returned to the Board, where it found the October 2016 VA opinion and November 2016 addendum inadequate and did not substantially satisfy the May 2014 Board remand directives. In September 2019, the Agency of Original Jurisdiction (AOJ) sought an additional medical opinion as directed. See September 2019 Request for Physical Examination. However, on November 16, 2019 the Indianapolis VAMC cancelled the opinion noting, “VBMS records reviewed and additional records needed to complete requested opinion are still unavailable. Please see records needed from last report.” See November 18, 2019 CAPRI. The additional records needed are referenced in the November 2016 addendum opinion as, “serial echocardiograms to evaluate full extent of damage to heart if any and document the progression of Barlow’s.” These records have not been received. \ In addition, the Board notes the VA examiner has not addressed the areas the Board specifically directed be addressed. See January 2020 Request for Physical Examination. Thus, another remand is required. Stegall, 11 Vet. App. at 271. The Board notes that the remand directives are requesting opinions in regard to any cardiac condition the Veteran was diagnosed with, including both the cardiomyopathy which is noted on the death certificate as a contributing cause of the Veteran’s death, and Barlow’s syndrome which the Veteran was diagnosed with while in service. The Board finds that the October 2016 VA examination and November 2016 addendum are unclear as to whether the examiner is describing the cardiomyopathy or Barlow’s syndrome in the first question regarding whether any diagnosed cardiac disability had its onset during active service or is related to such service. In addition, as noted in the June 2017 Board remand, the medical opinion is inadequate as it does not provide a complete rationale for the opinion that Barlow’s syndrome was not aggravated during active duty service, Second, the opinions do not expressly address whether Barlow’s syndrome materially or substantially contributed to death –that is, to aid or lend assistance to the production of death Third, it does not address whether Barlow’s syndrome was of such severity as to have a material influence in accelerating death. See 38 C.F.R. § 3.312(a), (c). Also, although the medical opinion acknowledged that the Veteran’s death certificate showed cardiomyopathy, the medical opinion did not indicate whether Barlow’s syndrome caused or contributed to cardiomyopathy—an essential component of the Appellant’s theory of entitlement. In view of the above, the Board finds that the medical opinion must be returned for an addendum. As remand is necessary, the Appellant should be afforded another opportunity to either submit, or to authorize VA to obtain, private terminal treatment records for the Veteran from Methodist Hospital of Indiana. The Appellant is cautioned that VA’s duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). She should cooperate and assist as requested in the development of the claim. Furthermore, the Appellant should be asked to provide or identify the source of any outstanding serial echocardiograms performed on the Veteran in light of the 2016 VA medical opinion, which indicated that serial echocardiograms would help the physician to evaluate the full extent of damage to the heart, if any, and document the progress of Barlow’s syndrome. The matters are REMANDED for the following action: 1. The AOJ should request that the Appellant either submit, or authorize VA to obtain, private terminal treatment records for the Veteran from Methodist Hospital of Indiana. All attempts to obtain such records should be documented in the claims file, to include any responses from the Appellant in regard to this request. 2. The AOJ should request that the Appellant either submit, or identify and authorize VA to obtain, any outstanding serial echocardiograms. All attempts to obtain any identified records should be documented in the claims file, to include any responses from the Appellant in regard to the request. 3. The examiner must describe and diagnose the manifestations of any cardiac disability found to be present at any time prior to the Veteran’s death. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cardiac disability had its onset during active service or is related to such service. 4. The 2016 VA medical opinion with the addendum should be returned for another addendum. The previous medical opinion indicated that Barlow’s syndrome was a congenital disease and, with this in mind, the following questions should be answered: (a) Was the Veteran’s Barlow’s syndrome, first diagnosed in service, aggravated (permanently worsened) during service? (b) Did Barlow’s syndrome materially or substantially contribute to death –that is to aid or lend assistance to the production of death? (c) Was Barlow’s syndrome of such severity as to have a material influence in accelerating the Veteran’s death? (d) Did Barlow’s syndrome cause or contribute to the Veteran’s cardiomyopathy, as theorized by the Appellant? Only IF YES, then did cardiomyopathy cause or contribute (materially or substantially) to the Veteran’s death? The claims file must be reviewed, and the review noted in the report. A complete rationale for each question answered is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to   be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.