Citation Nr: 21069176 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-31 676 DATE: November 17, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1957 to April 1959 and October 1961 to August 1962. The Veteran died in August 2016, and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in March 2019 and April 2020, at which times the matter was remanded to obtain a medical opinion to properly address the reasonably raised theories relevant to the claim. As will be outlined below, the Board finds that unfortunately, none of the resulting opinions have been responsive to the Board's directives or otherwise adequate to adjudicate the claim and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran died in August 2016. The death certificate recorded the Veteran's cause of death as aspiration with "late effect of right middle cerebral artery stroke" identified as a leading immediate cause. Schizoaffective disorder, hypertension, and gastroesophageal reflux disease (GERD) were also identified on the death certificate as "significant conditions contributing to death". Prior to his death, the Veteran was service-connected for major depressive disorder, status post-operative open reduction for fracture of left ankle with arthritis, right ankle condition, degenerative disc disease of the lumbosacral spine, and radiculopathy right lower extremity associated with degenerative disc disease. The Appellant in this case claims that although not service connected specifically for schizoaffective disorder, the Veteran's service-connected depression was largely the same disorder (claiming that schizoaffective disorder is "widely defined as major depression") and, in any case, in and of itself was a major contributing cause of his death. As noted in the introduction above, the claim has been remanded by the Board twice in an attempt to obtain a medical opinion adequately addressing the Appellant's contention. In particular, a medical opinion was requested to identify any and all psychiatric disorders the Veteran had at the time of his death, whether they were etiologically related to his service-connected depression and/or his military service and, more importantly, whether any said condition contributed substantially or materially to, combined to cause, or aided or assisted in the Veteran's death. A VA medical opinion was obtained in November 2019, but the examiner did not identify all of the Veteran's psychiatric diagnoses, but rather conflates them (indicating the conditions "ranged" in diagnoses) and, more importantly, did not answer the question of whether any of these identified diagnoses contributed substantially or materially to the Veteran's death. While the examiner did opine that "the evidence does not support any psychiatric diagnoses as being either the primary or contributory reason for his passing...," the examiner did not reconcile this opinion with the fact that schizoaffective disorder is, in fact, listed on the Veteran's death certificate as a "significant condition contributing to death." It is unclear whether the piece of evidence was overlooked but, in any case, the opinion was not otherwise explained. As such, a subsequent medical opinion was obtained in May 2020 where the examiner identified a long list of psychiatric conditions and diagnoses and opined that none are etiologically related to the Veteran's military service. The examiner also opined that the Veteran's "only service-connected condition is major depressive disorder...[and] less likely than not contributed substantially or materially to, combined to cause, or aided or assisted in the Veteran's death". The examiner's rationale referenced the Veteran's death certificate noting the immediate cause of death as aspiration and the stroke as the condition leading to immediate cause of death. Once again, however, the examiner failed to reconcile this opinion with the fact that the death certificate lists schizoaffective disorder as a significant condition contributing to death or whether there was any significant difference between the Veteran's manifestations of service-connected depression versus his schizoaffective disorder. Indeed, the Board's remand directive specifically requested the examiner to reconcile this evidence with a detailed rationale. Unfortunately, the Board finds the May 2020 opinion to be similarly inadequate for adjudicative purposes, and therefore, another remand for further medical opinion is required. As a final matter, the May 2020 VA medical examination report indicates the possibility of missing private treatment records. Specifically, it was noted that there were no psychiatric treatment records between 1962 and 1986 in the claims file. The examiner reported "although private records are referred to in 1986, these are simply not available in the electronic file". Upon review of the claims file, the Board finds that no attempt to obtain any private psychiatric treatment records during this time period has been made. Therefore, while on remand for the reasons noted above, the Board directs the RO to attempt to obtain any private treatment records by sending a waiver and release to the Appellant. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private psychiatric treatment records as the Appellant may identify relevant to the claim from 1962 to 1986. If the Appellant provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. After the above has been completed, obtain an addendum opinion from an appropriate clinician regarding the cause of death claim on appeal here. In rendering the opinion on the questions asked below, the examiner must specifically consider and address the notation in the Veteran's Death Certificate that schizoaffective disorder was one of the "other significant conditions contributing to death". After the clinician has had an opportunity to review the entire claims file and a copy of this remand, the examiner is asked to opine on the following: - Identify any and all psychiatric condition(s) the Veteran had at the time of his death and whether they are part and parcel of his service-connected major depressive disorder or a separately identifiable disability with separately identifiable manifestations. o For any condition considered separate from his service-connected major depressive disorder, the examiner should address whether it is at least as likely as not that such condition had (i) its onset in, or (ii) is otherwise related to, the Veteran's military service, or (iii) is caused or aggravated by a service-connected disability, or (iv) if a psychosis is diagnosed, it manifested within one year of the Veteran's service discharge in August 1962, i.e., by August 1963. - For the Veteran's service-connected depression, as well any other psychiatric condition found to be service-related or comingled with depression, opine whether it is as likely as not that the condition(s) substantially or materially contributed to, combined to cause, or aided or assisted the cerebral artery stroke and resulting aspiration, which is listed as the cause of death on the Veteran's Death Certificate. Again, this opinion must be made specifically addressing and reconciling the notation on the Veteran's Death Certificate that schizoaffective disorder was one of the "other significant conditions contributing to death." The examiner must also consider the fact that a service-connected disability involving an active process affecting a vital organ may be considered a contributory cause of death, even when the primary cause of death appears "unrelated" to that disability, if the service-connected disability results in "debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death." 38 C.F.R. § 3.312(c)(3). The examiner must provide a complete rationale for any and all conclusions reached. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss 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. The examiner must provide a complete rationale for any and all conclusions reached. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss 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. (Continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.