Citation Nr: 21061532 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-21 307 DATE: October 4, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to service connection for myelodysplastic syndrome (MDS) is remanded. Entitlement to service connection for a left leg above the knee amputation is remanded. Entitlement to service connection for a right leg above the knee amputation is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1963 to June 1984 with service in the Republic of Vietnam during the Vietnam War. He died in March 2016. The appellant is his surviving spouse. As to the claims of service connection for MDS, a left leg above the knee amputation, and a right leg above the knee amputation, the Board has characterized these claims as service connection claims, and not accrued benefits claims, because the Veteran had claims for them pending at the time of his death and the widow filed for substitution shortly after his death. In June 2021, the appellant and a witness testified at a virtual hearing before the undersigned and a transcript of that hearing has been associated with the claims file. Entitlement to service connection for the cause of the Veteran's death is remanded. The widow testified that she believed that the Veteran's coronary artery disease caused or contributed substantially or materially to death. The widow also claimed, in substance, that the Veteran should have been service-connected for MDS during his lifetime because the MDS that caused his death was due to his military service, to include his presumptive exposure to tactical herbicides due to his service in the Republic of Vietnam during the Vietnam War. Tellingly, a review of the record on appeal reveals the following the Veteran was service-connected for coronary artery disease and served in the Republic of Vietnam from October 1965 to October 1966. The record also includes a Certificate of Death that lists as the only cause of the Veteran's death MDS. Moreover, while MDS is not entitled to a presumption of in-service incurrent because it is not one of the specifically enumerated disease processes VA found are linked to tactical herbicide exposure (see 38 C.F.R. §§ 3.307, 3.309(e)), in June 2021 VA received a letter from the Veteran's doctor in which he opined, in substance, that the Veteran's MDS was due to his exposure to the herbicides Agent Orange during his service in the Republic of Vietnam during the Vietnam War. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude an appellant from establishing service connection with proof of direct causation). However, the Board finds the June 2021 medical opinion to speculative to decide the claim. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Nonetheless, given the above record, the Board finds that the criteria to obtain a medical opinion as to the relationship, if any, between the Veteran's service-connected coronary artery disease and his death as well as the MDS that caused his death and his military service to include his presumptive exposure to tactical herbicides due to his service in the Republic of Vietnam during the Vietnam War has been met. See 38 U.S.C. § 5103. While this issue is in Remand status, the RO should also obtain and associate with the record the Veteran's outstanding post-1984 VA and private treatment records to include all records surrounding his complaints, diagnoses, or treatment for MDS and the bilateral leg amputations including from Longmont Hospital. See 38 U.S.C. § 5103A(b). Entitlement to service connection for MDS, a left leg above the knee amputation, and a right leg above the knee amputation are remanded As to all the service connection claims, the Board finds that they are inextricably intertwined with the above the cause of death claim because MDS was the cause of the Veteran's death as well as the cause of both amputations. Therefore, the Board finds that these claims must also be Remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). As to the claims of service connection for bilateral above the knee amputations, the widow and/or her representative testified that the Veteran's service-connected coronary artery disease played a role in the need for the amputations. However, a medical opinion as to this question is not found in the records. Therefore, while these issues are in Remand status, the RO should obtain a medical opinion as to this question. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In providing the opinion and when again adjudicating the appeal, the examiner and RO should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) redefined aggravation to know include temporary flare-ups. The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding post-1984 VA treatment records. 2. After obtaining all needed authorizations from the appellant, associate with the claims file any outstanding post-1984 private treatment records including all records surrounding the Veteran's complaints, diagnoses, or treatment for MDS and the bilateral leg amputations from Longmont Hospital. If possible, the appellant should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. Obtain a medical opinion from a suitably-qualified medical professional to address the claims of service connection for the cause of the Veteran's death as well as the claims of service connection for MDS, a left leg above the knee amputation, and a right leg above the knee amputation. The claims file should be made available and reviewed by the examiner in conjunction with providing the opinion. Following consideration of the evidence of record (both lay and medical), the medical professional is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected coronary artery disease caused or contributed substantially or materially to death. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that MDS was caused by the Veteran's military service including his presumptive exposure to tactical herbicides due to his service in the Republic of Vietnam during the Vietnam War. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected coronary artery disease caused the disease process that caused the need for the bilateral above the knee amputations. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected coronary artery disease aggravated the disease process that caused the need for the bilateral above the knee amputations. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral above the knee amputations caused or contributed substantially or materially to death. In providing answers to the above questions the examiner should consider and discuss the June 2021 medical opinion. In providing answers to the above questions, the examiner should consider and discuss the service treatment records. In providing answers to the above questions, the examiner should consider and discuss the competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner should NOT rely solely on (1) negative evidence or (2) the fact that MDS is not a presumptive illness attributed to herbicide exposure. In providing answers to the above question, the examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against. In providing answers to the above questions the examiner should be aware of the facts that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). (Continued on the next page) In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.