Citation Nr: 21072119 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-23 367 DATE: December 2, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to service-connected burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1980 to May 1988 and from September 1988 to January 1992. He died in March 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision a Department of Veterans Affairs (VA) Regional Office (RO). The appellant requested a Board hearing in a September 2017 appeal to the Board. A hearing was scheduled in May 2021, but the appellant withdrew the request. As such, the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d). The Veteran died in March 2015 due to idiopathic pulmonary hemosiderosis (lung disease). At the time of death, service connection was established for PTSD and left third digital phalanx fracture with residual scar. In June 2021, the Board denied the claim for spousal recognition, and remanded the issue of service connection for cause of death. However, although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. The Board finds that all of the 2021 directives were not substantially complied with, so the Board must again remand the matter. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for the cause of the Veteran's death To establish service connection for the cause of the Veteran's death, the evidence must indicate that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. See 38 U.S.C. § 1310. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 C.F.R. § 3.312. The Veteran's DD-214 reflects that he was stationed in Southwest Asia during the Persian Gulf War from December 1990 to May 1991. Therefore, he is considered a Persian Gulf War Veteran, which triggers consideration of his claim under 38 C.F.R. § 3.317. First, as to the claim for service connection for the cause of the Veteran's death, the Board cannot make a fully informed decision because no VA examiner has provided an adequate opinion on whether the Veteran's cause of death was related to in-service exposure to asbestos or smoke from oil fires in the Persian Gulf. Prior to his death, the Veteran provided statements wherein he asserted that he was exposed to JP-8 jet fuel directly when he was required to perform mouth-to-mouth cardiopulmonary resuscitation on a service member who had ingested the jet fuel and was noted to be foaming at the mouth when he arrived on the scene. He additionally indicated that he had exposure to smoke and particles from oil well fires, as well as solvent and fuel fumes. He stated that he was near the burning oil wells and also burn pits on a regular basis during his service in Operation Desert Storm. See 2011 Gulf War examination. The examiner also stated that the Veteran was a lifelong nonsmoker (emphasis added) with no history of significant secondhand smoke exposure and no known occupational exposure to pulmonary irritants, apart from his military service. After service, he experienced issues with his lungs, such as chronic episodes of pneumonia, shortness of breath, fatigue, and hemoptysis. For example, in October 2010, he went to the hospital for hemoptysis, and it was noted that common causes include infections such as pneumonia, and that long-term causes may include cancer and sarcoidosis. His private medical records from September 2010 chest X-ray findings revealed low lung volumes with bronchovascular crowding and a CT scan of the chest showed a 6-mm noncalcified lower lung nodule. In a September 2010 notation, his doctor stated that the Veteran had no obvious exposure to fungus or animal guano or immunosuppression; but did note that "he has significant exposure history to smoke fumes while in the Army." In a March 2015 VA PTSD examination, the examiner referenced a hospitalization in February 2015 for respiratory troubles in which the Veteran experienced a loss of control over his environment and basic respirations while intubated and on a ventilator. The examiner interpreted this situation as extreme anxiety that made it necessary to maintain high levels of sedation to prevent over breathing and desaturation and opined that "it is as likely as not that this severe a reaction is related to the Veteran's PTSD." As rationale, the examiner stated that the Veteran was held in the progressive care unit, instead of being transferred to a general medical or surgical floor, until discharge. The examiner concluded that the Veteran's medical choices, including care, have been impacted by the burden of his PTSD symptoms. Three days later, unfortunately, the Veteran died. In the 2017 VA examination, it was noted that it is conceded that the Veteran had in-service exposure to smoke and particles from oil well fires; exposure to pesticides and insecticides; exposure to indigenous infectious diseases; exposure to solvent and fuel fumes; ingestion of pyridostigmine bromide tablets, as a nerve gas antidote; the combined effect of multiple vaccines administered upon deployment; and inhalation of ultra fine-grain sand particles. In addition, it was conceded that there may have been exposure to smoke and particles from military installation "burn pit" fires that incinerated a wide range of toxic waste materials. In the April 2020 Disposition testimony, the appellant asserted that the Veteran's lung disease resulted from exposure to burning material during service in the Persian Gulf War. The appellant stated that the Veteran was exposed to burning body parts, chemicals, paint, and other trash, and that the Veteran's lung disease was also due to pills and injections during service. The appellant reported that within a year of the Veteran's separation from service, he was treated at private hospitals for pneumonia that resulted in the respiratory disease causing his death, and that many doctors opined that the Veteran's lung disease that caused his death is considered an undiagnosed lung disease and "they never figured out what causes it, where it comes from." The appellant also noted the aforementioned March 2015 examiner who opined the Veteran's lung disease was related to his military service. While a medical opinion was obtained in July 2017, the 2021 Board decision deemed the 2017 opinion to be inadequate. First, the examiner failed to provide an adequate rationale to support the conclusions reached. Further, the examiner did not mention or address the appellant's assertions or reconcile conflicting evidence, including the March 2015 VA PTSD examiner's opinion that service-connected PTSD symptoms impacted the Veteran's treatment during a recent hospitalization for respiratory disease, which the Veteran ultimately succumbed to three days later. As such, a remand for an addendum opinion was requested. Unfortunately, the resulting June 2021 opinion failed to include a sufficiently detailed or adequate rationale and is tainted by the same flaws in which the Board found the 2017 to be inadequate. Specifically, the VA examiner did concede that while the Veteran's idiopathic pulmonary hemosiderosis (lung disease) is a disease with a clear and specific diagnosis and pathophysiology, but the etiology is unknown, without discussing or analyzing the facts based on this specific Veteran. Rather, the examiner cited to the same medical literature as the 2017 examiner, of how this condition is primarily found in infants with no known cause. Further, the examiner's rationale was that there is limited or suggestive evidence of no association between environmental exposures and lung function of Gulf War veterans, which is not accurate, and does not consider this particular Veteran's medical history. Further, the examiner did not provide a Gulf War medical opinion despite stating "the cause of Idiopathic Pulmonary Hemosiderosis is unknown. The specific pathophysiology and etiology of IPH in this Veteran... remains unknown." Finally, the remand directives specifically requested the examiner opine whether it is as likely as not the Veteran's PTSD caused or contributed substantially or materially his lung disorder which led to his death, as noted by the March 2015 examiner. The examiner did not provide a discussion as to whether this specific Veteran's PTSD caused or aggravated his lung disorder, but rather simply stated there is no recognized causes of such, with no rationale or consideration of the 2015 medical opinion which states to the contrary which was specifically requested in the 2021 remand directives. Therefore, the Board finds that the 2021 addendum opinion remains insufficient upon which to decide the claim as it cannot determine an etiology for the Veteran's complaints prior to his death from the available medical evidence without additional interpretation by a medical professional. Thus, a remand is necessary for a Gulf War VA medical opinion. As such, on remand, the RO should request an addendum opinion on whether the Veteran's cause of death was related to exposure in the Persian Gulf and/or caused or aggravated by his PTSD. Finally, throughout the record prior to his death, it was noted that the Veteran was hospitalized with his illnesses. However, those medical records are not associated with the claims file. Therefore, a remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to service-connected burial benefits The appellant was granted $1,045.00 in non-service-connected burial benefits. As for service-connected burial benefits, the appellant's service connection burial benefits claim remains intertwined with the cause of death claim that is the subject of the present appeal and remand. Accordingly, adjudication of the additional burial benefits claim must await development and readjudication of this claim, as a claim that is inextricably intertwined with another claim that remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for the Veteran's post-service medical providers. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. The request should include records from Dr. T.Russell, Dr. T. Baranski, Dr. M. Blinder, Dr. D. Darby, as well as from Washington University School of Medicine and from Barnes Jewish Hospital, and the hospital the Veteran went to prior to his death. 2. Then, forward the claims file to the 2021 VA examiner, or another examiner if that examiner is not available, to obtain an addendum opinion addressing the relationship, if any, between the Veteran's service and his cause of death. The examiner must note his or her review of the complete claims file, including this remand, and be aware of the reasons why the June 2021 opinion is not adequate. Following a review of the complete record, the examiner is asked to address the following: (a.) For the Veteran's listed cause of death, idiopathic pulmonary hemosiderosis (lung disease) and symptomatology, it at least as likely as not (i.e., probability of 50 percent) that the lung disorder, to include symptomatology of chronic episodes of pneumonia, shortness of breath, fatigue, and hemoptysis was due to (i) an undiagnosed illness; (ii) a medically unexplained chronic multisystem illness with no known etiology; or a (iii) diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology? (b.) Prior to his death, were there objective indications that the Veteran was suffering from a chronic lung disability manifested chronic episodes of pneumonia, shortness of breath, fatigue, and hemoptysis? The examiner must determine whether these symptoms can be attributed to any known clinical diagnosis or to a chronic multi-symptom illness with no known or a partially explained etiology. (c.) With respect to the diagnosed disability of Idiopathic Pulmonary Hemosiderosis, is it at least as likely as not (i.e., probability of 50 percent) that the disability was incurred in service or is otherwise etiologically related to such service, to include exposure to burn pits? The examiner should opine whether it is at least as likely as not that, prior to his death, there was a medically unexplained chronic multisymptom illness (MUCMI) to account for the Veteran's chronic episodes of pneumonia, shortness of breath, fatigue, and hemoptysis, after considering his history and medical records. The term MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs. Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. The examiner should indicate whether either the etiology or the pathophysiology of the condition(s) is inconclusive, based on consideration of the Veteran's individual circumstances, in order to show a MUCMI. The examiner is asked to consider the following: September 2010 private records show history of CAD, hypertension, GERD. He presented with shortness of breath and lethargy. It was noted he has syncope with unclear etiology. Dr. S.S. stated he discussed the case with Dr. Miles and they "have not been able to come up with a diagnosis for the [Veteran] and appears very ill"; September 2010 notation that he had no obvious exposure to fungus or animal guano or immunosuppression; but did not that "he has significant exposure history to smoke fumes while in the Army" and that he had "a significant history of exposure to smoke and fumes; was 14 years in the Army including a year to 18 months in Desert Storm"; September 2010 chest X-ray findings revealed low lung volumes with bronchovascular crowding and CT scan of the chest showed a 6-mm lower lung nodule; October 2010 he went to the hospital for hemoptysis, and it was noted that common causes include infections such as pneumonia, and that long-term causes may include cancer and sarcoidosis; September 2011 report from RO that the Veteran's STRs indicate a separation examination was requested, but none is found in the files and the RO determined it cannot be found; October 2011 Gulf War examination, the Veteran reported that that he was exposed to JP-8 jet fuel directly when he was required to perform mouth-to-mouth cardiopulmonary resuscitation on a service member who had ingested the jet fuel and was noted to be foaming at the mouth when he arrived on the scene; He also reported exposure to smoke and particles from oil well fires, as well as solvent and fuel fumes. He stated that he was near the burning oil wells and also burn pits on a regular basis during his service in Operation Desert Storm; The examiner noted that the Veteran was a lifelong nonsmoker with no history of significant secondhand smoke exposure and no known occupational exposure to pulmonary irritants, apart from his military service, and that "the exact nature of his current pulmonary condition is not yet identified"; The 2011 examiner further stated that "The Veteran's underlying diagnosis for his respiratory symptoms is not known, but it would appear that he has a combination of an...as yet undiagnosed, pulmonary disorder" and that "the Veteran's chronic disability pattern is due to 'an undiagnosed illness.'"; 2012 examination reported noted that the Veteran had served in the Middle East in the 90s and that he had been doing well until about a year and a half ago when had pulmonary issues diagnosed, and "since then he has had multiple issues with unclear diagnosis." (emphasis added); His private records from Barnes Jewish Hospital confirmed a diagnosis of secondary polycythemia of unknown etiology and the records also suggested further testing was needed to determine the etiology of the symptoms; In February 2015, his diagnosis of idiopathic pulmonary hemosiderosis was noted as an episode of diffuse alveolar hemorrhage twice requiring intubation and mechanical ventilation. All work up negative for specific etiology: no clinical signs suggestive of rheumatological disease or vasculitis (emphasis added); and VA medical notation that "a few days prior to his death, a VA doctor stated [the Veteran] has diagnosis of idiopathic pulmonary hemosiderosis, for which there are no proven treatment of benefit, but yet, there is not data on the natural history of the disease either." (emphasis added). The examiner is then asked to consider whether: (d.) It is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD caused or contributed to the cause of death? The examiner should specifically cite to any evidence that supports this opinion. A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. The examiner MUST consider the March 2015 VA examiner's opinion that "While in the hospital, Veteran struggled with loss of control over his environment and loss of control over basic respirations while he was intubated and on the ventilator. His extreme anxiety made it necessary to maintain high levels of sedation to prevent over breathing and desaturation. It is as likely as not that this severe a reaction is related to the veteran's PTSD. After Veteran was extubated, he continued to verbalize anxiety about his environment." Three days later, the Veteran passed away. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. After the above development, and any additional development the RO may deem necessary, has been completed, readjudicate the issues on appeal, to include entitlement to service-connected burial benefits pending the findings of the above. M. Mills Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.