Citation Nr: 21071179 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 14-42 391 DATE: November 30, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1971 to April 1973. Unfortunately, the Veteran died in September 2011. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision. The Veteran testified before a Veterans Law Judge during a November 2017 videoconference hearing, the transcript of which is included in the file. Since that time, the Veterans Law Judge who held the hearing retired. The Appellant was informed of this fact in September 2021 and was offered an opportunity for another hearing. The letter indicated that if the Appellant did not respond, a decision will be made based on the evidence of record. The Appellant did not respond to the September 2021 letter and the Board will proceed with adjudication. By way of background, in June 2020 the Board issued a decision denying entitlement to service connection for the cause of the Veteran's death. The Appellant appealed the decision to the Court of Appeals for Veterans Claims (the Court). In an April 2021 Order, the Court granted the VA General Counsel's and the Appellant's Joint Motion for Remand (JMR). The Board's June 2020 decision was subsequently vacated and the Appellant's claim was remanded to the Board for readjudication in compliance with the JMR. Specifically, the JMR called for the claim to be remanded because the Board failed to provide an adequate statement of reasons or bases. Entitlement to service connection for cause of death is remanded. The Appellant is claiming entitlement to service connection for the cause of the Veteran's death. The Veteran's certificate of death indicates his immediate cause of death was acute myocardial infarction. Chronic obstructive pulmonary disease (COPD) and hypertension were listed as other significant conditions contributing to death. At the time of death, the Veteran was service-connected for mood disorder, evaluated as 50 percent disabling; degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; radiculopathy of the right lower extremity, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as 0 percent disabling (noncompensable). The Veteran had also been awarded a total disability rating based on individual unemployability, effective November 7, 2006. Dependency and indemnity compensation (DIC) benefits may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. VA regulations state that service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting 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). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Here, the parties to the JMR indicated that the Board, in its prior decision, did not adequately address evidence suggesting that the Veteran's service-connected spine disability with associated radiculopathy, potentially hastened or accelerated death, insofar as such disabilities prevented the Veteran from properly conditioning, and that this inability to condition, in turn, caused or worsened hypertension and COPD, which were identified on the death certificate as disabilities contributing to death. Dr. C.B. expressed that such a relationship existed in a September 2007 statement. However, more recent examiners did not directly associate the Veteran's service-connected spine disability with a worsening of conditions contributing to death. Obesity may be an intermediate step between a service-connected disability and a current disability that may be connected on a secondary basis. VAOPGCPREC 1-2017 (January 6, 2017). The medical opinions of record discuss the issue of the Veteran's weight gain and obesity. However, to date, no examiner has specifically opined on the issue of whether the Veteran's service-connected disabilities caused him to become obese or aggravated his obesity such that obesity could serve as an "intermediate step" for establishing service connection for one of the disabilities identified as contributing to his death, per the guidelines set forth in the General Counsel opinion. See VAOPGCPREC 1-2017 (January 6, 2017). Such inquiry extends both to causation and to aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (Feb. 24, 2020). While the Board regrets the additional delay, an addendum opinion regarding whether there existed a causal link between the Veteran's service-connected disabilities and obesity (as an intermediate cause), should be obtained. The matter is REMANDED for the following action: 1. Return the claims file to a qualified medical professional to obtain an addendum opinion. Access to the electronic claims file, including a copy of this remand, must be made available for the examiner to review. Based upon a review of the entirety of the claims file, the examiner is requested to provide responses to the following questions: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's service-connected conditions caused, contributed substantially or materially to cause, or aided or lent assistance to the production of his death? In rendering this opinion, the examiner should address whether the Veteran's service-connected disabilities caused or contributed to his development of myocardial infarction, COPD, or hypertension. In particular, the examiner must address whether the Veteran was obese due to lack of conditioning, and whether such was an intermediate step between his service-connected disabilities and his cause of death. In providing a response, the examiner should answer each of the following in sequence: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities (to specifically include his lumbar spine, radiculopathy, or mood disorder disabilities) caused him to become obese, or aggravated his obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing the Veteran's myocardial infarction, COPD, or hypertension? (iii) If the answer to question (ii) is "yes," would the Veteran's myocardial infarction, COPD, and/or hypertension not have occurred but for his obesity caused or aggravated by his service-connected disabilities? In offering any opinion, the examiner must consider the full record, and the opinion should reflect such consideration. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. 2. Thereafter, readjudicate the appeal. If the benefit sought remains denied, the Appellant and her representative should be issued a supplemental statement of the case and an appropriate period of time should be allowed for response. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.