Citation Nr: 21064173 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-31 115 DATE: October 19, 2021 ORDER The petition to reopen the previously denied claim for service connection for the cause of the Veteran's death is granted. REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING OF FACT An unappealed May 2012 rating decision denied service connection for the cause of the Veteran's death; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The May 2012 rating decision denying the claim for service connection for the cause of the Veteran's death is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1971 to August 1991. He died in January 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 decision from a Department of Veterans Affairs (VA), Regional Office (RO). In April 2017, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for the cause of the Veteran's death. The Board concludes that the May 2012 rating decision denying the claim for service connection for the cause of the Veteran's death is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. A May 2012 rating decision denied service connection for the cause of the Veteran's death because evidence of record failed to show that the Veteran's death was due to his service-connected disability. VA notified the appellant of this decision in a May 2012 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. As such, the May 2012 rating decision became final. Evidence associated with the claims file following the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. Specifically, new and material evidence includes medical treatment records from Dr. R.W., MD, documenting the Veteran's medical treatment just prior to death, including detailed prescriptions dating to January 2010 to January 2012; and a private medical opinion from Dr. K.L., dated January 2021, which tends to suggest that the Veteran's death is linked to service and chronic obstructive pulmonary disease (COPD). The medical opinion states that "there is strong evidence to support that the causes of death were related to his service-connected medical diagnosis while he was service in military service, specifically his COPD and chronic pain." See Medical Treatment Record- Governmental (January 2021). This evidence was not previously considered by decision-makers and tends to support the appellant's theory of entitlement. Therefore, new and material evidence has been received. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran's death. The appellant seeks entitlement to service connection for the cause of the Veteran's death. In essence, the appellant and her representative argue several theories. First, the appellant argues that the Veteran's death was due to trichloroethylene (TCE) exposure. See Hearing Transcript (November 2020). Second, she argues that the Veteran's coronary artery disease, which was one of the causes of his death, was caused by exposure to Agent Orange while serving in Korea, including due to nuclear weapon deployment in close proximity to demilitarized zone (DMZ). See VA 21-4138 Statement In Support of Claim (February 2016). Third, she argues that his death was due to prescription medications taken for his service-connected disabilities. See Hearing Transcript (November 2020). Fourth, she argues that his death is due to heart disease which originally manifested in service. Id. Fifth, she argues that the Veteran had hepatitis C in service and studies show that it contributes to plaque buildup within the heart resulting in congestive heart failure, which was one of the causes of the Veteran's death. Id. The appellant does not argue, nor does the record reflect, that the Veteran served in Vietnam and was exposed to herbicide agents there. To ensure that VA has met its duty to assist, remand is necessary to obtain a medical opinion in this complex medical matter. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)(4). 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 January 2012 listed his immediate cause of death as chronic obstructive pulmonary disease (COPD) and coronary artery disease (CAD). See Death Certificate (February 2016). At the time of his death, the Veteran was service-connected for lumbar strain with bilateral lower extremity radiculopathy (40%); gastric ulcer with reflux (20%); left ankle injury (20%); infectious hepatitis (10%); and dermatophytosis of hands and feet (0%). See Rating Decision-Codesheet (March 2008). He was also in receipt of total disability based on individual unemployability based on his service-connected disabilities from June 1, 2003. Id. The Veteran's service treatment records (STRs) show normal findings at enlistment in August 1971. See STR-Medical (September 1991). In August 1974, the Veteran complained of chest pain. Id. In December 1975, he again reported chest pain in the left medial area; lungs were found to be clear. Id. In his June 1977 Report of Medical History (ROMH), the Veteran reported experiencing shortness of breath. Id. In April 1980, chest x-rays were ordered after chest pain reports and showed increased valvular markings with otherwise normal findings. Id. He again reported shortness of breath at a June 1984 ROMH. Id. A September 1984 periodic examination notes occasional chest pain. Id. In May 1990, the Veteran again reported left sided chest pain assessed as "doubt CAD but must r/o." Id. Exercise stress test was ordered to rule out CAD. Id. At the time of separation in May 1991, the Veteran reported shortness of breath, pain or pressure on chest, chronic cough. Id. His separation examination conducted at the same time showed normal findings for lungs and chest, and heart. Id. Post-service records show that the Veteran, aside from being service-connected for the above listed disabilities, was prescribed Oxycontin and Percocet for his service-connected back and ankle disabilities, as well as Nexium. See VA Examination (June 2007); CAPRI (June 2007). The record shows a diagnosis of COPD in July 2002. See Medical Treatment Record - Non-Government Facility (December 2002). In support of her assertions, the appellant submitted (1) treatise type evidence showing an association between Oxycontin and heart attacks, nuclear threats on the Korean Peninsula and health effects of TCE; (2) private treatment records from Dr. R. W., for the treatment for COPD for just over a year prior to the Veteran's death including continued prescription for Oxycontin and Nexium, and (3) a private medical opinion from Dr. K.L., D.O., a licensed doctor of osteopathic medicine and a member of the American Board of Family Medicine, as well as a physician and surgeon in the California Department of Correction and Rehabilitation. See Third Party Correspondence (January 2021). As to the appellant's argument that the Veteran was exposed to TCE or herbicide agents, the appellant does not contend that the Veteran had herbicide exposure in the Republic of Vietnam or during the applicable period of service in Korea, or Thailand. His exposure to herbicides may not be presumed under any applicable law. However, that does not obviate VA's duty to assist in establishing the claimed exposure to herbicide agents, TCE and/or other chemical agents. Here, the record does not reflect that VA has fully attempted to verify the presence of herbicide agents, TCE and/or other chemical agents, and the Veteran's exposure. The record does not reflect that efforts were undertaken through official sources to verify whether herbicide agents, TCE and/or other chemical agents were used or stored where the Veteran served. As noted above, the appellant submitted a private medical opinion to support the appeal. See Medical Treatment Record-Non-Governmental (January 2021). However, the Board finds that the medical opinion is inadequate to decide the appeal. It is inadequate for reasons that include the following. First, the medical opinion does not reflect a review of the Veteran's complete medical records based on the list Dr. K.L provided, showing review of selected evidence of record. For instance, the opinion concluded that "it is my professional opinion that they are strong evidence to support that causes of death were related to his service-connected medical diagnosis while he was serving in military service, specifically his COPD and chronic pain." See Medical Treatment Record-Non-Governmental (January 2021). The record, however, shows that the Veteran was not service-connected for COPD or chronic pain. Dr. K.L. also indicated that his "professional opinion is limited to the document provided" to him along with conversations with the appellant and Mrs. S., and noted that he was unaware of the Veteran's post-service smoking history. Id. Second, the medical opinion reflects that chronic pain for back injury resulted in chronic use of opioids, which has been associated with cardiovascular death. Id. He detailed that opioid use over time likely aggravates the risk of cardiovascular disease, which "is associated with increased risks of atherosclerosis, stroke, and heart attacks." However, no clear explanation for this has been provided and no clear conclusion drawn as applicable to the Veteran's particular circumstances. Third, the opinion references and cites to various journal articles, but does not provide a clear discussion of how that medical literature supports the conclusions reached. In this regard, the opinion indicates that a study showed strong evidence that those with COPD have a higher incidence of and mortality from cardiovascular disease. He also references studies that opioid use was associated with a 24 percent increased risk of cardiovascular death. It is noted that an association can arise between variables in the presence and absence of a causal relationship. By contrast, causation indicates that one event is the result of the occurrence of the other event. In other words, medical opinion appears to rely on medical studies indicating an association between COPD and heart disease as well as opioid use and heart disease and does not rely on studies showing actual causation. It cannot be logically said that evidence of association tends to show causation. Essentially, in view of the above, the Board finds that the medical opinion does not support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Although the favorable medical opinion is inadequate to decide the appeal, it is sufficient to trigger VA's duty to assist. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Hence, due to the complex nature of the etiology in this case, the Board believes than a medical opinion from an appropriately trained medical professional is necessary to decide the appeal. Lastly, the record indicates that additional treatment records were reasonably identified but not obtained and associated with the claims file. In this regard, the appellant testified at the November 2020 hearing that the Veteran was treated at Reynolds Omni Hospital soon after separation. See Hearing Transcript (November 2020). Additionally, VA treatment records indicate that the Veteran saw his private provider prior to January 2007. See CAPRI (June 2007). However, no private treatment records from that time period have been associated with the file. Hence, VA did not fulfill its duty to assist as to obtaining outstanding medical records. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 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 Reynolds Omni 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. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, TCE and/or other chemical agents, and whether herbicide agents or other toxic substances were stored at that sites where the Veteran served. If more details are needed, contact the appellant to request the information. If there is still insufficient information to verify exposure to herbicide agents TCE and/or other chemical agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent, TCE and/or other chemical agent exposure. 3. Thereafter, obtain a medical 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: Principal Cause of Death (a.) Whether the Veteran's death from COPD and CAD is at least as likely as not etiologically related to in-service injury or disease to include any exposures, ONLY IF CONCEDED. i. In formulating an opinion, the favorable private medical opinion should be reviewed and addressed along with the literature reference therein in additional to all other relevant evidence of record. ii. If another etiology is more likely the cause of the Veteran's COPD and CAD, this should be fully explained and supported. iii. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The examiner must address numerous in-service complaints of chest pain and trouble breathing, increased valvular markings in April 1980, a May 1990 annotation of a need for an x-ray to rule our CAD, and the Veteran's reports of shortness of breath, pain or pressure on chest, chronic cough at the time of his separation in August 1991. iv. A negative medical opinion may not be predicated on the absence of STR annotations of COPD or CAD. Contributory Cause of Death (b.) Whether the Veteran's infectious hepatitis, lumbar spine disability and/or left ankle disability, to include medications taken therefor, 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.] (c.) Whether the Veteran's infectious hepatitis 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. (d.) Whether the Veteran's infectious hepatitis 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.] 4. 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.