Citation Nr: 21061408 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 09-14 690 DATE: October 4, 2021 REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to July 1968, including a tour of duty in the Republic of Vietnam. The appellant in this matter is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The appellant testified at an RO hearing in September 2008 and a Travel Board hearing in September 2011, and copies of the hearing transcripts are of record. In July 2014, the Board issued a decision denying the claim on the merits. The Veteran appealed from that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2015 Order, the Court granted a Joint Motion for Remand, vacating the Board's decision and remanding for additional proceedings. As discussed below, and pursuant to such Order, the case must again be remanded to the AOJ for further development in compliance with the Court's March 2015 Order granting the parties' Joint Motion for Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion or explain why the terms will not be fulfilled.). In August 2015 the Board remanded this issue for additional development. In April 2021, the Board notified the appellant that the VLJ who conducted the September 2011 Board hearing was no longer employed at the Board. The appellant elected to have a new hearing following notice of that VLJ's departure. She subsequently withdrew her hearing request. Thus, the hearing request is considered to be withdrawn. The Board finds that more development is necessary prior to final adjudication of the claim on appeal. The Veteran died in August 2006. The certificate of death reported the immediate cause of death as cardiopulmonary arrest, with an interval of minutes. The underlying causes of death were listed as metastatic carcinoma and pancreatic adenocarcinoma, both with an interval of months. No contributing conditions were listed. The Board notes that although VA previously obtained several medical opinions regarding the cause of the Veteran's death, including whether the Veteran's in-service diagnosis of gonorrhea evidence high-risk, unprotected sexual activity for contracting hepatitis C, which contributed to the Veteran's pancreatic cancer, additional development is still required. The Board initially notes that the Veteran's service personnel records show that the Veteran served in Vietnam from September 1966 to July 1968. Therefore, the Veteran is presumed to have been exposed to herbicides. 38 U.S.C. § 1116 (f) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2020). Notably, a veteran is entitled to a presumption of service connection if he is diagnosed as having certain enumerated diseases, including ischemic heart disease, associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 C.F.R. § 3.309 (e). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. Note 2. As noted above, the Veteran's immediate cause of death was cardiopulmonary arrest. However, the record does not contain an opinion on the nature of the Veteran's heart condition. As ischemic heart disease is now an enumerated disease associated with herbicide exposure, the Board finds that an opinion is needed to determine whether the Veteran's cause of death is related to or a symptom of ischemic heart complication as the record does not contain an opinion as to whether the Veteran's cardiopulmonary arrest was a symptom of ischemic heart disease. The matters are REMANDED for the following action: 1. The appellant should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who treated the Veteran for the disabilities on appeal. After the appellant has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Obtain an opinion to determine the nature and etiology of the Veteran's heart disorder. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. The examiner is asked to opine whether is at least as likely as not that the Veteran had ischemic heart disease during his lifetime. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.