Citation Nr: 21066331 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 13-02 638 DATE: October 29, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1954 to July 1961 and from October 1961 to July 1974. Unfortunately, he died in 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the appellant testified before the undersigned at a hearing at the RO in Little Rock, Arkansas. A transcript of her testimony has been associated with the claims file. Previously, the Board remanded the appellant's claims for further development in a April 2017 and June 2019 remand decisions. Thereafter, the Board denied her appeals in an April 2020 decision. The appellant timely appealed this decision to the Court of Appeals for Veterans Claims (Court). During the pendency of the appeal, however, the parties entered into a Joint Motion for Remand (JMR) in July 2021. Pursuant to the terms of the JMR, the parties agreed that the Board failed to ensure there was substantial compliance with its June 2019 remand directives when it issued its April 2020 decision and that it failed to provide an adequate statement of reasons and bases for its findings. Consistent with the JMR, the Court vacated the April 2020 decision and remanded the appeal for further consideration. The matter now returns to the Board. 1. Cause of death As set forth in greater detail in the July 2021 JMR, the Board previously remanded the issue of entitlement to service connection for the Veteran's cause of death in April 2017. At that time, the Board directed the RO to send the appellant a notification letter to cure deficiencies under Bryant v. Shinseki, 23 Vet. App. 488 (2010), and to obtain a new VA medical opinion regarding the Veteran's cause of death. In an August 2018 medical opinion, a VA examiner opined that it was less likely than not that his service-connected diabetes and related conditions, such as diabetic nephropathy, peripheral vascular disease, and atherosclerotic heart disease (ASHD), caused or contributed to his death. A different medical opinion obtained from another physician also opined that it was less likely than not that his service-connected diabetes and its associated conditions caused or contributed to his death. In June 2019, the Board remanded the claim for a new medical opinion because the first VA examiner's opinion did not clearly opine as to whether service-connected disabilities had contributed to his death, or whether a possible blood clot in the left foot was related to his service-connected disabilities. In relevant part, the Board's remand directives instructed the examiner to opine as to whether it was at least as likely as not that the Veteran's service-connected disabilities contributed to his death. If the conditions did not contribute to his death, the examiner was instructed to clearly explain why. In rendering these opinions, the examiner was directed to address certain evidence, including January 2009 private treatment records on renal insufficiency, and to also opine as to whether an arteriol clot in the left foot was a contributory factor to his cause of death. Subsequently, an examiner opined in a June 2019 medical opinion that it was less likely than not that his service-connected diabetes, nephropathy, peripheral vascular disease, or ASHD caused or contributed to his death. However, the opinion did not actually explain why each disability was not a contributory cause of his death. Moreover, although the Board directed the examiner to provide particular attention to certain evidence, including the January 2009 private treatment records on renal insufficiency, the examiner did not consider this evidence when rendering his opinion. Last, the examiner's rationale discussed gangrene and an arteriol clot in the Veteran's left foot, but only in terms of whether those conditions caused his death and not whether the arterial clot was a contributory factor to his cause of death. A remand by the Board confers a right to compliance with the directives of that remand. Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (substantial, rather than strict, compliance is required). Having considered the VA medical opinions in the record and the terms of the JMR, the Board thus finds that there has not been substantial compliance with the Board's prior remand directives. Remand is thus warranted for corrective action. 2. DIC under 38 U.S.C. § 1318 The appellant's claim for DIC under 38 U.S.C. § 1318 is inextricably intertwined with her claim for service connection for the Veteran's cause of death, which the Board has remanded herein. As such, appellate consideration of the 38 U.S.C. § 1318 claim must be deferred pending resolution of the other claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following action: Obtain a VA opinion from a qualified clinician who has not yet evaluated the Veteran's cause of death. The VA examiner must review the claims file in its entirety, including this remand, and acknowledge such review in the examination report. After reviewing the claims file, the VA examiner is asked to do the following: (a.) Opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that the Veteran's service-connected disabilities, including diabetes, diabetic nephropathy, peripheral vascular disease, and/or ASHD contributed to his death. If none of these conditions were a contributory cause of death, clearly explain why each condition was not a contributory cause of death. The VA examiner is reminded that service-connected disability will be considered a contributory cause of death to the extent that it (1) contributed substantially or materially to death, (2) combined to cause death, or (3) aided or provided assistance to the production of death. (b.) Additionally, the Board notes that a September 22, 2009, private treatment note generated two days prior to the Veteran' death states "arteriol clot of the left foot that has left great toe purple and black and bottoms of all toes left foot cyanotic." As such, the VA examiner must also address and opine, with a clear rationale, whether this condition was related to his service-connected diabetes and its associated conditions, such as diabetic nephropathy, peripheral vascular disease, and/or ASHD. If so, the VA examiner must opine as to whether this was a contributory factor to the cause of his death. (c.) A detailed explanation is requested for all opinions rendered. In doing so, the VA examiner must specifically address the following evidence: i. The Veteran was diagnosed with colon cancer in January 2006 and pancreatic cancer in December 2008. In January 2009, he was relocated from the hospital to hospice care. He died in 2009. ii. A January 14, 2009, private treatment record shows that the Veteran experienced renal insufficiency. iii. A September 2009 death certificate lists the immediate cause of death as pancreatic cancer, due to or a consequence of rectal cancer. iv. A July 2010 amended death certificate added heart disease, diabetes, and peripheral vascular disease as significant conditions contributing to death, but not resulting in the underlying cause of death. v. In a January 2013 statement, the appellant stated that she believed that the amended death certificate was issued because diabetes contributed to gangrene, which also played a role in his death. (d.) If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.