Citation Nr: 21068976 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-31 248 DATE: November 17, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to March 1967, and died on June [REDACTED], 2017. The appellant in this case is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by the St. Paul, Minnesota Pension Center and Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for cause of death. The Veteran had no outstanding claims with VA at the time of his death, and thus no determination of substitution is necessary or appropriate in this case. 38 U.S.C. § 5121A, 38 C.F.R. § 3.1010; see Reliford v. McDonald, 27 Vet. App. 297 (2015). In July 2021, the appellant testified at a videoconference hearing held at the before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The Veteran at the time of his death did not have any representation. The appellant, the Veteran's surviving spouse, has obtained her own representation as noted in the header of this decision. Entitlement to service connection for cause of death is remanded. As an initial point, the claims file contains no record that the appellant ever received her statutory and regulatory notice and duty to assist provisions required by the Veterans Claims Assistance Act of 2000, commonly referred to as VCAA notice. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5109 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2021). For a claim of service connection for the cause of the Veteran's death, 38 U.S.C. § 5103 (a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom. Hupp v. Shinseki, 329 F. App'x 277 (Fed. Cir. 2009). The notice should include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App at 352-53. While the RO sent written correspondence to the appellant notifying her of VA's receipt of her DIC claim, there is no record that appropriate VCAA notice was made in this case, and thus remand is required in part to ensure the appellant's rights are satisfied in this area. Service Connection for Cause of Death The appellant is seeking entitlement to service connection for cause of death, having filed a claim in October 2017 asserting that the listed acute cardio-respiratory failure, septic shock, and refractory hemolytic anemia which caused the Veteran's death was related to an earlier soft tissue sarcoma. The appellant pointed out in testimony before the undersigned VLJ in July 2021 that her late husband, the Veteran, had been treated for male breast cancer, and that cancer is related to the Veteran's cause of death. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312(a). To establish service connection for the cause of a Veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or primary, cause of death when such 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). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). At the time of the Veteran's death, he was not service-connected for any disability. As such, the question for this appeal is whether service connection is warranted for the listed primary or contributing causes of death, and if the Veteran's noted cancer of the breast tissue is a soft tissue sarcoma that is related to the cause of death, given that soft tissue sarcoma is a listed presumptive disease related to the Veteran's herbicide exposure from his Vietnam service. In the alternative, are there any other conditions related to presumptive herbicide exposure in the Veteran's medical history that relate to his death. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The Board notes in the record that the Veteran served in the Republic of Vietnam at Military Assistance Command Vietnam, Hue, as noted in personnel records from September 1965 to August 1966. Based on this evidence, the Board finds that the Veteran served in the Republic of Vietnam during an applicable presumptive period and is therefore presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Thus, an in-service event, injury or disease, specifically herbicide exposure, has been shown for the purposes of presumptive service connection. The Veteran died on June [REDACTED], 2017, and his original death certificate, dated July [REDACTED], 2017, noted the primary cause of death to be acute cardio-respiratory failure, septic shock, and refractory hemolytic anemia. No other contributing or secondary causes were listed on that original death certificate. At the time of his death, the Veteran was not service connected for any disability. The RO issued its September 2018 negative decision regarding service connection as cause of death based on that original death certificate, which only listed acute cardio-respiratory failure, septic shock, and refractory hemolytic anemia. To address the appellant's assertions, an addendum medical opinion is required to determine whether the Veteran's breast tissue cancer or any other illness or condition was a contributing cause of death. The Board notes that in addition to the soft tissue sarcoma asserted by the appellant, the Veteran may have had ischemic heart disease or a respiratory cancer, both of which qualify under the presumptive list for service connection as due to herbicide exposure. The Board notes that the appellant's representative specifically argued the Veteran had died of lung cancer, a respiratory cancer that would qualify under the list of presumptive conditions related to herbicide exposure. As such, then, the appellant's claims are remanded for a retrospective opinion to address the possible relationship of the Veteran's earlier breast tissue cancer and/or any other related disease, including any soft tissue sarcoma or other herbicide exposure presumptive condition such as ischemic heart disease or a respiratory cancer, which would be a qualifying disease under VA herbicide exposure law and regulation. As the Board cannot make medical judgments, a remand is required for an addendum medical opinion to address this possibility. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Chotta v. Peake, 22 Vet. App. 80 (2008). The matters are REMANDED for the following action: 1. As a precursor, the RO is to provide appropriate VCAA notice to the appellant pursuant to her claim for service connection for cause of death. Given the appellant's rights as to the VCAA duty to assist were not followed in the initial course of this claim, contact the appellant to seek any additional records that may assist in the adjudication of her claim, to include any records related to her late husband's breast tissue cancer, possible ischemic heart disease, and respiratory cancer, or any other condition related to the Veteran and his possible cause of death. 2. Obtain a medical opinion from an appropriate medical professional skilled in the diagnosis and treatment of soft tissue sarcomas or other cancers for consideration of the appellant's claim for service connection of cause of death; and specifically whether any of the Veteran's conditions, to include breast cancer, ischemic heart disease, respiratory cancer, or other condition, materially or substantially contributed to the cause of death. The examiner should opine to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that any of the Veteran's conditions, to include breast cancer, ischemic heart disease, respiratory cancer, or other condition, is as likely as not a principal or contributory cause of death? (A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death.") Attention is called to the Board's finding that the Veteran served on the ground in Vietnam 1965-1966 in Hue, Republic of Vietnam, and herbicide exposure for the purposes of presumptive service connection is conceded in this case. A detailed rationale supporting the examiner's opinions should be provided. In forming the opinions, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must 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). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the appellant, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The appellant and her representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.