Citation Nr: 21063453 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-16 524 DATE: October 14, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In a March 2020 decision, the Board denied service connection for the cause of the Veteran's death. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court in a May 2021 Order, vacated the Board's decision and remanded the matter to the Board. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; degenerative arthritis, fracture of toes of the left foot, rated as 10 percent disabling; tinnitus rated as 10 percent disabling; bilateral hearing loss, rated as noncompensably disabling; tinea cruris, rated as noncompensably disabling; the combined rating was 60 percent. The Certificate of Death reflects that the Veteran died in June 2012. The immediate cause of death was drowning. There were no significant conditions contributing to death. The autopsy report noted that the Veteran was witnessed swimming after a boat which had been blown into deep water by a gust of wind. While swimming, he was witnessed to slow down and put his face into the water subsequently drowning. The autopsy concluded that the Veteran's death was due to drowning. The Appellant testified at a Board hearing and presented written statements. She indicated that the day the Veteran died, he was out on a boat they had just bought. Their eleven-year-old grandson was visiting from out of town and the Veteran wanted to take him out on the boat. The Veteran dropped their grandson on the dock. The Veteran was going to tie up the boat. However, a big wind came through the little cove and the boat started to get out of his control. The Veteran lost the rope and jumped in the water. However, he came back up, but was not moving. He was just on the surface. Their grandson then pulled him up on the dock. Two people walked by and jumped in and helped their grandson. The Appellant asserted that the Veteran's anxiety was the cause of him jumping in the water, but she felt that he had a massive heart attack. She said that the autopsy report indicated there was only a little water in his sinuses, and there was not any water in his lungs. She asserted that one cannot drown if there is no water in the lungs. She said that the medical examiner told the justice of the peace that he only had certain options where a death occurred in water. However, if it happened on the dock, it would have been a different protocol. The Appellant said she went to her primary physician, Dr. C., who listened to her and said it can still be a heart attack. She said a person does not drown without water in the lungs. A July 2015 letter from Dr. C. in the record in which he stated that cardiac death can occur suddenly without evidence of any cardiac damage at autopsy and was a possible scenario in the Veteran's death. In a subsequent April 2019 opinion, a VA examiner explained that the Veteran had pulmonary findings consistent with pulmonary edema. The congestion of his liver was also consistent with the same. The examiner stated that these findings would not be expected with a sudden cardiac event. In addition, the examiner stated that the Veteran had evidence of blunt force trauma to his head and grandson reported that the Veteran jumped in the water, hit his head went under and was not responding. The examiner felt that it was more likely he was unconscious from the head injury and drowned with the evidence of fluid in his sinus, skin changes on hands and feet, and the congestion and edema of his lungs and liver. The examiner opined that PTSD does not cause one to jump into the water. The Veteran did not grasp his chest or show any signs of distress prior to jumping. He hit his head by report, went under and did not respond. The examiner indicated that Dr. C. stated that cardiac death can occur suddenly without evidence of any cardiac damage at autopsy and was a possible scenario in the Veteran's death. In this case, sudden cardiac death would not be expected to have the pulmonary and hepatic findings noted on examination. The JMR indicated that the VA April 2019 medical opinion of record is inadequate. The JMR noted that the examiner opined that "PTSD does not cause you to jump into the water." Yet, the examiner did not provide a rationale as to how she arrived at that conclusion in light of the Veteran's symptoms. The JMR indicated that such a rationale is important in this case because the Appellant maintains that the Veteran's PTSD caused the Veteran to jump in water, which then resulted in his death. Additionally, the Appellant maintains that the Veteran was experiencing symptoms of panic, hypervigilance, easy excitability, and a heightened startle response, at that time. Therefore, the JMR determined that a remand is warranted for a new medical opinion that provides an adequate rationale and allows for a fully informed decision. The matters are REMANDED for the following action: Obtain a VA medical opinion by an appropriate VA clinician to determine whether a service-connected disability (PTSD) caused or materially or substantially contributed to the cause of the Veteran's death. The record must be made available to and reviewed by the examiner. The examiner is then asked to answer whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD either caused or contributed substantially or materially to the cause the Veteran's death. In answering that inquiry, the examiner should specifically respond to the following questions: (A) The examiner should opine if the Veteran's PTSD (1) contributed substantially or materially to death; (2) aided or lent assistance to the production of death; (3) resulted in debilitating effects and a general impairment of health to the extent that it rendered the Veteran less capable of resisting the effects of the causes of death; and (4) was of such severity as to have a material influence in accelerating death. In addressing these inquiries, the examiner should consider the Veteran's PTSD symptoms of panic, anxiety, hypervigilance, being easily excitability, and having a heightened startle response, around the time of the boating incident; whether those PTSD symptoms or other related symptoms led him to (a) jump into the water and (b) drown. (B) The examiner should opine as to whether it is at least as likely as not that the Veteran's PTSD-related anxiety and/or other symptoms caused a fatal heart attack while he was attempting to retrieve the boat and that this prevented him from getting into the boat and consequently resulted in his death being deemed a drowning. The examiner should review and consider the July 2015 medical statement of W.C., M.D., which stated that cardiac death can occur suddenly without any evidence of cardiac damage at autopsy and that in the case of the Veteran's death, that was a possible scenario. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly, 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.