Citation Nr: 21064387 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 20-06 407 DATE: October 20, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to December 1969, including service in Vietnam. Records reflect that the Veteran is a Purple Heart recipient. Regretfully, the Veteran passed away in October 2005. The Appellant is the Veteran's surviving spouse. Although the Board sincerely regrets the additional delay that will result from remanding this claim, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claim so that she is afforded every possible consideration. The Appellant seeks service connection for the cause of the Veteran's death, noted on the death certificate as congestive heart failure (CHF). Pulmonary embolus (PE) and hypertension were noted to be other significant conditions contributing to the Veteran's death. The Appellant's agent contends that the Veteran was exposed to Agent Orange, which caused the development of ischemic heart disease which ultimately contributed to the Veteran's final demise. See October 2017 Notice of Disagreement. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a). A principal cause of death is one in which a service-connected disability, 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 a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). A contributory cause of death is inherently one not related to the principal cause. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Direct service connection requires competent evidence of a current disability, a precipitating in-service event, and a causal connection between such an event and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, "[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in... Vietnam" during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019) (quotation marks omitted). Initially, the phrase "service in the Republic of Vietnam" meant service only on Vietnam's landmass and inland waterways. Effective January 29, 2019, the meaning of this phrase was expanded to encompass service within Vietnam's 12-nautical-mile territorial sea. Id. Assuming a Veteran establishes that, during the Vietnam era, (s)he served in Vietnam within the parameters set forth in Procopio, VA regulations allow him/her to obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303(d). Specifically, 38 C.F.R. § 3.307 provides that a Veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307(a)(6)(iii). With regard to presumptive diseases associated with exposure to herbicide agents, the Board notes that, the Veteran's Form DD-214 indicates that he had service in the Republic of Vietnam. As the Veteran served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides, to include Agent Orange. The Board notes, however, that CHF, PE, and hypertension are not disabilities subject to such presumption. 38 C.F.R. § 3.309(e). Although CHF, PE, and hypertension are not diseases that have been found to be presumptively associated with exposure to herbicide agents, service connection for cause of death is available on a direct basis if there is evidence that the Veteran's primary or contributory causes of death are related to herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran was not service connected for any disabilities at any point during his life. The immediate cause of the Veteran's death was CHF, with PE and hypertension listed as contributory causes. Although neither ischemic heart disease nor myocardial infarction are listed on the death certificate, the question for the Board is whether ischemic heart disease, which includes old myocardial infarction, can be shown to be the principal or a contributory cause of the Veteran's death. In October 2015, a VA medical opinion was obtained in which the provider opined that the Veteran's "inferior infarct of undetermined age, as noted on his 05/15/2005 ECG, and/or ischemic heart disease, less likely as not caused or substantially contributed to this veteran's death." The rationale was that "admission ECG and Troponin I were negative for acute myocardial infarction." It was also noted that new EKG findings and a D-dimer value was consistent with a pulmonary embolism. This explanation confirms the immediate and contributory causes of death listed on the death certificate. The Appellant indicated she was told by the hospitalist that her husband died of a massive heart attack. See April 2015 Statement in Support of Claim. The evidence shows that is simply not the case. The treatment notes of October 3, 2005 state, "Whether he had a[n] myocardial infarction or any other illness is unknown at this time." It goes on to state, "...congestive heart failure was the reason for the patient's demise. The patient has been started on Nipride. Dr. [H] agreed with this secondary to his hypertensive emergency which probably caused the congestive heart failure." However, the October 2015 VA opinion does not address whether the previous myocardial infarction(s) significantly contributed to the Veteran's death. Rather, the physician referenced the fact that there is no mention of ischemic heart disease or myocardial infarction on the death certificate. An additional medical opinion was obtained in November 2016 that considered a hospital admission in February 2004 in which acute myocardial infarction was ruled out. The physician agreed with the October 2015 opinion that it was less likely than not that there was any basis for myocardial infarction (MI) having either been present, or contributing materially or substantially, to this Veteran's death. The medical consensus is that ischemic heart disease did not cause the Veteran's death because his death was caused by CHF, which was caused by PE and/or hypertension. Neither VA examiner specifically addressed whether ischemic heart disease was causally connected to CHF, PE, or hypertension. The matter is REMANDED for the following action: 1. Forward the complete claims file to the physician who provided the November 2016 opinion. If this provider is not available, please forward the claims file to the October 2015 physician, or an appropriate medical professional for a comprehensive review of the record and to render the requested opinions. 2. Following a full review of the record, the medical professional is asked to address the following: (a.) Did the Veteran have ischemic heart disease prior to his death in October 2005? (b.) If so, was ischemic heart disease the immediate or underlying cause of death or was etiologically related thereto? (c.) Did ischemic heart disease contribute substantially or materially to cause death, or aid or lend assistance to the production of death? A complete rationale should be provided for any opinion stated, including citation to specific evidence of record and/or medical authority as appropriate. If the requested opinion cannot be rendered without resorting to speculation, the examiner should state 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 the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, Associate 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.