Citation Nr: 21070417 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-42 816A DATE: November 23, 2021 REMANDED Entitlement to service connection for cause of death is remanded. Entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1971, including combat service in the Republic of Vietnam. The Veteran died in January 2015. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision (denying service connection for cause of death) and a July 2015 administrative decision (denying burial benefits) by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for cause of death. 2. Entitlement to burial benefits. In August 2019, the Board denied the Appellant's claims for service connection for cause of death and burial benefits. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 order granting a Joint Motion for Remand (JMR), the Court vacated the Board's August 2019 decision and remanded the claim to the Board for additional development and readjudication. In April 2021, the Board remanded the issues in order to obtain outstanding treatment records and a medical opinion addressing whether the Veteran's atherosclerotic cardiovascular disease (ASCVD) caused or contributed to his death, and whether his COPD was caused by his in-service herbicide exposure. In June 2021 a medical opinion was obtained. The VA examiner opined it is less likely than not that the Veteran's atherosclerosis aggravated his CHF, noting there was no objective evidence that the CHF was ischemic in nature, caused by or aggravated by atherosclerosis. In July 2021, the Board found that the June 2021 medical opinion was incomplete because it did not provide an opinion as to whether the Veteran's ASCVD at least as likely as not caused his death, and the matters were remanded for an additional medical opinion. A new opinion was obtained in September 2021. The examiner opined that it was less likely than not that the Veteran's ASCVD caused his death, contributed substantially or materially to his death, combined to cause his death, resulted in debilitating effects and general impairment of health to the extent that rendered the Veteran less capable of resisting the effects of either disease or injury primarily causing death, or was of such severity as to have material influence in accelerating death. The rationale provided was that the Veteran had no history of myocardial infarction, no history of cardiac catheterization, and no history of stent placements. The examiner noted that the only note of ASCVD was in a December 2014 private treatment record from a hospital admission noting that a chest x-ray showed "atherosclerotic vascular calcifications." The examiner also noted that the stress test conducted during that time showed normal left ventricular perfusion and no chest pain or electrocardiogram abnormalities. Additionally, an ECHO showed normal systolic function and no regional wall motion abnormalities. The Board finds that while the June 2021 opinion and September 2021 medical opinions address whether the Veteran's ASCVD caused, contributed to, combined to cause, aided or lent assistance to, or resulted in debilitating effects rendering the Veteran less capable of resisting the effects of disease or injury primarily causing his death; neither examiner provided an opinion as to whether the Veteran's COPD is at least as likely as not caused by his conceded in-service herbicide exposure as directed by the April 2021 Board remand. As such, the Board finds that the AOJ did not substantially comply with the April 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While additional delay is regrettable, the Board finds that another remand is required to fairly decide the Appellant's claim. VA will notify the appellant if further action is required. The AOJ is advised that this case has been remanded by the Board three times (including the remand herein). Expeditious treatment and substantial compliance with remand directives are required. As the Appellant's claim for burial benefits is intertwined with the cause of death claim, it must also be remanded at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Obtain a VA addendum opinion with an appropriate clinician. After reviewing the claims file, to include a copy of this Remand, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD was incurred in or is otherwise related to active service, to include his conceded in-service herbicide exposure. The examiner must provide a complete explanation in support of the conclusion reached. In making this determination, the examiner may not rely on the fact that COPD is not on the presumptive list of diseases associated with herbicide exposure. Rather, the examiner should consider and discuss, as relevant, why any statistical or medical studies are found to be persuasive or unpersuasive, whether there are risk factors for the development of the Veteran's COPD specific to his medical history, and whether it manifested in an unusual manner, among any other factors deemed pertinent. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.