Citation Nr: 21070891 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-27 753 DATE: November 26, 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 September 1949 to February 1953 and from September 1988 to July 1992, with additional service in the Army Reserves. Unfortunately, he died in February 2015. The Appellant is his surviving spouse, so widow. She appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant-widow and Brent Emery, who is a Veterans Service Officer (VSO), testified in support of this claim during a "virtual" teleconference hearing in September 2021 before the undersigned Veterans Law Judge of the Board. This claim of entitlement to service connection for the cause of the Veteran's death is remanded. The death of a Veteran will be considered as due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). Here, the Veteran's initial death certificate lists the cause of his death as complications of dementia. In written and hearing testimony to this Board, the Appellant-widow contends that the Veteran's terminal dementia is traceable to head injuries he sustained while in the military, so essentially traumatic brain injuries (TBIs), including especially a blow to his head with a glass bottle while on active-duty status in April 1951 and a second blow to his head while effecting aircraft repairs in September 1951. She further contends she observed neurocognitive symptoms when they were married in 1984, including a profound personality change towards anger issues, violent outbursts, and moments of disorientation to time, place, or location, even when at their home. Other records in the file, however, show at least two additional head injuries the Veteran sustained during his civilian employment, so outside the confines of his military service, and they obviously bear no relationship or correlation to his service and, thus, cannot be the underlying basis of this cause-of-death claim. The RO's September 2017 rating decision precipitating this appeal denied service connection for cause of death because the Veteran's service treatment records (STRs) did not reflect symptoms of or treatment for dementia and because those intervening ("intercurrent") head injuries during his civilian employment are not attributable to his service (i.e., did not result in service-connected disability). However, the RO did not address the Veteran's earlier head injuries in service that now form the basis of this appeal, and the Board sees there is no medical opinion of record adequately addressing those head injuries in service or any subsequent symptom development the Appellant-widow asserts started during the 1980s and continued to the time of the Veteran's eventual death in February 2015. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated that, while 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical nexus opinion for a Dependency and Indemnity Compensation (DIC) claim, so including for cause of death, it does require VA to assist a claimant in obtaining such whenever necessary to substantiate the DIC claim. See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). When considering those precedent decisions, the Board finds the Appellant-widow's submissions sufficient to at least raise the possibility that VA assistance could help her in substantiating her claim, and therefore sufficient to justify obtaining a medical opinion addressing the purported relationship or correlation ("nexus") between the Veteran's head injuries in service in April and September 1951, and his later development of dementia and eventual death from it. Accordingly, this claim is REMANDED for the following action: Since the Veteran is deceased, arrange for the file to be forwarded to an appropriate clinician for review and a medical advisory opinion concerning whether the Veteran's two head injuries in service in April and September 1951, either caused or contributed substantially or materially to the later development of dementia and his eventual death from this disease in February 2015. For the purposes of this analysis, the examiner must consider the Appellant's testimony that the Veteran's symptoms, including personality changes and disorientation in time and location, first manifested in the early 1980s. All responses, whether favorable or unfavorable to the claim, must include rationale. If an opinion cannot be provided without resorting to mere speculation, the examiner must so indicate but, as importantly, explain why a more definitive response is not possible or feasible. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.