Citation Nr: 20078408 Decision Date: 12/10/20 Archive Date: 12/10/20 DOCKET NO. 14-11 662 DATE: December 10, 2020 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran had active service from January 1959 to January 1963 and April 1963 to March 1965. He died in August 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision from a Department of Veterans Affairs (VA), Regional Office (RO). T In September 2015 and April 2018, the Board remanded the appeal for additional development. In April 2017, the appellant testified at a videoconference hearing over which a Veterans Law Judge of the Board presided. A transcript of the hearing is of record. In February 2018, the appellant was notified that the Veterans Law Judge that conducted the hearing was no longer employed by the Board, and that she had the right to a new Board hearing. The appellant was advised that if a response was not received within 30 days it would be assumed that she did not want another hearing, and that the Board would proceed accordingly. No response was received. In January 2019, the Board denied the appellant’s claim. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) and, in a November 2019 order, the Court granted the Joint Motion, vacating the Board’s January 2019 decision and remanding the matter for compliance with the Joint Motion. Entitlement to service connection for the cause of the Veteran’s death is remanded. To ensure that VA has met its duty to assist, remand for a supplemental medical opinion is necessary to decide this appeal. See38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)(4). The appellant contends that the Veteran’s death was etiologically related to his period of active service. During the April 2017 Board hearing, she asserted that the Veteran had contracted hepatitis C due to his service as a hospital corpsman, and that effects of the hepatitis C accelerated the Veteran’s death. At the time of the Veteran’s death, service connection had not been established for any disability, nor was any claim for benefits pending before VA. However, an October 2018 VA medical opinion reflects that it is at least as likely as not that the Veteran's diagnosed hepatitis C is due to infection acquired during active service-specifically, to include in-service exposure as a healthcare provider; or is otherwise related to his active duty. Post-service hospital treatment records from Johns Hopkins pathology show that the Veteran was diagnosed with hepatitis C following a Hepatitis C PCR test in April 1998. In support of the claim, in July 2017, the appellant has submitted certain treatises that refer to the transmission of hepatitis C to and through healthcare providers. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1).There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Turning to the facts, the Veteran’s death certificate from August 2011 listed his immediate cause of death as coronary artery disease (CAD), cardiomegaly and congestive heart failure (CHF). Other significant conditions contributing to death but not resulting in the underlying cause of death included chronic passive congestion, liver and splenomegaly, congestion and mottling lungs, and atrophic kidneys. An October 2018 VA medical opinion (VAMO) reflects that it is less likely than not that the Veteran’s diagnosed hepatitis C substantially or materially contributed to the cause of the Veteran’s death. The rationale was that (1) hepatitis C was not noted on the death certificate as the cause of death; (2) the examiner was unaware and there was no supporting evidence in the medical records that suggest that hepatitis C predisposed the Veteran to the conditions noted on his death certificate; and (3) hepatitis C infection continues over many years and can cause significant complications, including liver failure, liver cancer and scarring of the liver. Here, the opinion does not fully address the question of whether hepatitis C was a contributory cause of death. See generally, 38 C.F.R. § 3.312(a). Specifically, the Boards finds that the VAMO is inadequate because it does not adequately reflect consideration of whether hepatitis C contributed substantially or materially to death, or combined to cause death, or aided or lent assistance to the production of death, or rendered the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Given this, coupled with absence of any discernable analysis, the October 2018 VAMO is incomplete. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record). Therefore, remand is necessary for an addendum medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lastly, the Veteran’s death certificate shows that he passed away at Wilmington Hospital. The record does not reflect that efforts were made to assist the appellant in obtaining records from Wilmington Hospital for the treatment he received immediately prior to his death in August 2011. When reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the appellant in attempting to obtain them. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). The matter is REMANDED for the following action: 1. Provide the appellant a letter enclosed with a VA Form 21-4142, Authorization and Consent to Release Information to VA. The letter should ask the appellant to identify all outstanding, relevant treatment of the Veteran from private health care providers. The letter accompanying the VA Form 21-4142 should inform the appellant that VA is particularly interested in records from Wilmington Hospital. All attempts to obtain these records must be documented in the claims file. The appellant must be notified of any inability to obtain the requested documents. See 38 C.F.R. § 3.159(c)(1). Allow an appropriate amount of time for response and complete any additional development resulting from the appellant’s response. 2. Thereafter, obtain an addendum opinion from a physician to address the Veteran’s cause of death. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The medical opinion should, among other things, include a discussion of (i) the Veteran’s documented history and the appellant’s assertions, and (ii) the lay and medical evidence submitted by the appellant, to include the submitted articles. The physician must opine on: Contributory Cause of Death (a.) Whether the Veteran’s hepatitis C at least as likely as not: i. Contributed substantially or materially to his death; ii. Combined to cause his death; or iii. Aided or lent assistance to the production of his death. Explain. [Note: It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection.] (b.) Whether the Veteran’s hepatitis C at least as likely as not resulted in debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. Explain. (c.) Whether the Veteran’s hepatitis C at least as likely as not was of such severity as to have a material influence in accelerating death. Explain. [Note: The physician must consider that it would not generally be reasonable to hold that a condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature.] 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses 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. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.