Citation Nr: 21072107 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-27 316 DATE: December 2, 2021 REMANDED The appeal for dependency and indemnity compensation based upon service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to November 1971. He died in June 2015. The appellant is the Veteran's surviving spouse. This matter arises from a February 2016 decision by the Agency of Original Jurisdiction. The appellant provided sworn testimony in support of her appeal during a November 2019 videoconference hearing before the undersigned Veterans Law Judge. It was remanded by the Board of Veterans' Appeals (Board) in February 2020. In August 2020, the Board denied the benefit sought. The appellant perfected a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court endorsed a Joint Motion for Remand filed by both parties to the case, vacated the Board's August 2020 decision and remanded to the Board for further action consistent with the Joint Motion for Remand. According to the Veteran's June 2015 death certificate, the immediate cause of his death was hypoxic ischemic encephalopathy with the contributory cause of cardiac arrest. Because the Veteran served in Vietnam, it is presumed he was exposed to toxic herbicides during service. At the time of his death, he carried pertinent diagnoses of diabetes mellitus and ischemic heart disease, which are presumed under law to have been related to or caused by herbicide exposure. Thus, the question on appeal is whether either of these diseases caused or contributed to hypoxic ischemic encephalopathy and/or cardiac arrest. If so, service connection for the cause of his death would be warranted, and the appellant would be entitled to dependency and indemnity compensation. The authors of the Joint Motion agreed that the Board failed to ensure compliance with its own February 2020 remand instructions. The Board had remanded for a medical opinion, based upon review of the Veteran's medical records. In the opinion the expert medical reviewer was requested to address whether the Veteran's ischemic heart disease and/or diabetes aggravated or rendered him materially less capable of resisting the effects of the cardiac arrest which he experienced prior to his death. In the view of the authors, the medical opinion obtained pursuant to the February 2020 remand failed to adequately respond to these concerns. Therefore, another, more thorough and better-explained medical opinion should be obtained upon remand. The matters are REMANDED for the following action: Provide the Veteran's claims file to a VA physician with relevant medical expertise. The examiner is asked to provide a response to the following: Is it more, less, or equally likely that the Veteran's ischemic heart disease and/or diabetes 1) caused, aggravated, i.e., worsened beyond its natural progression, or contributed to his death in any way; or 2) resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. Provide a complete rationale to support the opinions. In doing so, please address and further explain, if possible, the rationale of the 2017 VA examiner who described cardiac damage due to ischemic heart disease. In doing so, the examiner should consider the following: Veteran's death certificate; December 2019 private medical opinion, dated November 22, 2019; October 2019 private medical opinion, dated November 2, 2018; December 2015 private medical opinion; June 2015 death report; (Continued on the next page) May 2017 and February 2016 VA examinations; and June 2015 private treatment records, to include Mansfield Hospital emergency department reports and Ohio Health-MedCentral Hospital reports. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.