Citation Nr: 21062957 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-36 191 DATE: October 12, 2021 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 December 1984 to May 2005. He died in November 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The appellant testified at a hearing before the undersigned Veterans Law Judge in January 2017. A transcript is of record. The Board remanded the case for further development in December 2017, April 2019, and July 2020. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. In a November 2020 VA medical opinion, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that a review of the Veteran's service treatment records and medical records showed no evidence of a diagnosis, treatment, or symptoms that were suggestive of any coronary disease while on active duty or within one year of his separation from service. However, the examiner did not address the relevance, if any, of the December 2006 service treatment record that documented complaints of chest pain or the electrocardiogram reports from the Veteran's period of active duty service. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a November 2020 VA medical opinion, the examiner also opined that it is less likely than not that the Veteran's conversion disorder with depression caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or, aided and lent assistance to his death. In so finding, the examiner stated that there are multiple factors that can contribute to increased risk for cardiovascular accidents, to include depression. However, the examiner stated that the Veteran did not endorse having suicidal ideation or severe depression. Notably, in a January 2006 VA medical record, the Veteran reported having thoughts of hurting himself. At that time, a VA physician determined that continued monitoring of the Veteran's mood was necessary due to his history of suicidal ideation. As such, it appears that the opinion was based on an inaccurate or incomplete factual premise. For these reasons, the Board finds that a remand is necessary to obtain an additional VA medical opinion. On remand, the Agency of Original Jurisdiction (AOJ) should also afford the appellant an additional opportunity to submit complete authorization forms to obtain any outstanding private medical records. The matters are REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who treated the Veteran prior to his death that are not already of record. A specific request should be made for authorization to obtain records the Veteran's private neurologist Dr. R.F.L. and any private physician referenced during the January 2017 hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should obtain a clarifying medical opinion regarding the cause of the Veteran's death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the appellant's assertions. The appellant has asserted that the Veteran suffered a stroke and/or heart attack during service and that he continued to experience symptoms throughout his life. She has also asserted that the Veteran's service-connected conversion disorder with depression caused or contributed to the cause of his death. The examiner should note that the appellant is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should state this with a fully reasoned explanation. (a) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's cause of death was causally or etiologically related to his military service, to include any symptomatology therein. It should be noted that the death certificate listed the immediate cause of death as cardiorespiratory arrest and the underlying cause as a "cardiovascular" accident. In rendering this opinion, the examiner should consider the appellant's lay statements regarding the nature and onset of the Veteran's symptoms. See, e.g., January 2017 hearing transcript. He or she should also address the December 2006 service treatment record that documented complaints of chest pain and the electrocardiogram reports from the Veteran's period of active duty service. See, e.g., November 1993, December 2004, and January 2005 reports. (b) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected conversion disorder with depression caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or, aided or lent assistance to his death. In rendering this opinion, the examiner should address whether the Veteran's service-connected disability affected a vital organ, thus hastening his death due to cardiopulmonary arrest and "cardiovascular" accident. He or she also address whether the Veteran's service-connected disability resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of the cardiopulmonary arrest and "cardiovascular" accident that caused his death. It should be noted that, in a November 2020 VA medical opinion, an examiner stated that the Veteran did not endorse having suicidal ideation or severe depression, but a January 2006 VA medical record indicates that the Veteran reported having thoughts of hurting himself. At that time, a VA physician determined that continued monitoring of the Veteran's mood was necessary due to his history of suicidal ideation. (c) The examiner should state whether the Veteran's left frontal lobe porencephaly was a congenital defect or disease. See, e.g., January 2005 MRI report; June 2005 VA examination. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") (i) If the Veteran's left frontal lobe porencephaly was a congenital defect, the examiner should state whether there is any evidence of a superimposed disease or injury during the Veteran's active duty service. (ii) If the Veteran's left frontal lobe porencephaly was a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the left frontal lobe porencephaly during the Veteran's active duty service and whether any increase was due to the natural progression of the disorder. (iii) If the Veteran's left frontal lobe porencephaly was not a congenital defect and did not clearly and unmistakably preexist the Veteran's active duty service, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to active duty service, to include any symptomatology therein. If so, the examiner should state whether it is at least as likely as not that the disorder caused the Veteran's death; contributed substantially or materially to his death; combined with another disorder to cause his death; or aided or lent assistance to his death. (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 it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.