Citation Nr: 21072671 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-50 153A DATE: December 6, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from February 1969 to June 1972, including service in Korea. He died and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (the Board) following a June 2017 rating decision in which the agency of original jurisdiction (AOJ) denied the appellant's claim of service connection for the cause of the Veteran's death. In her October 2017 VA Form 9, the appellant requested a Board videoconference hearing before a Veterans Law Judge. In July 2021, the appellant was notified that a videoconference hearing was scheduled for a date in September 2021. This letter was sent to the appellant's address of record and was not returned as undeliverable. A copy of the letter was also sent to the appellant's representative. The appellant did not report for her scheduled hearing, has not provided a statement of good cause for failing to report, and has not asked for the hearing to be rescheduled. In light thereof, her request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.603(d). As a final preliminary matter, in May 2018, the appellant attempted to opt into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) option. However, in October 2018, the AOJ notified the appellant that her appeal did not qualify for processing under RAMP because it had already been certified to the Board. As such, it remains on appeal in the legacy system. Entitlement to Service Connection for the Cause of the Veteran's Death VA is obliged to obtain a medical opinion in a cause of death claim when necessary to assist a claimant in substantiating the claim. 38 U.S.C. § 5103A (a); Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (the criteria for obtaining a medical opinion set forth in 38 U.S.C. § 5103A (d) are inapplicable to cause of death claims). In this case, the Veteran's death certificate lists the immediate cause of death as cardiac arrest, due to or as a result of end stage renal disease on dialysis. Focal segmental glomerulosclerosis and history of cerebral vascular accident are also listed as significant conditions contributing to death, but not resulting in the underlying cause of death. The Veteran's service treatment records reflect that he was treated for strep throat in service (see e.g,. the report of his April 1972 separation examination). The appellant contends that the Veteran's strep throat contributed to the causes of death noted on his death certificate. The claims file includes medical literature submitted by the Veteran which indicates that kidney problems can be caused by strep bacteria. In the alternative, the appellant asserts that exposure to herbicide agents (including Agent Orange) contributed to the heart conditions noted on the Veteran's death certificate. In light of the appellant's contentions, the medical literature that is associated with the claims file, and the fact that a remand is otherwise necessary to obtain outstanding treatment records, a medical opinion should be obtained on remand that addresses the nature and etiology of the Veteran's cause of death. Moreover, the Veteran's death certificate indicates that he was receiving treatment at the time of his death at Memorial Hermann Southeast Hospital. A remand is required to allow VA to obtain authorization and request these relevant outstanding private treatment records. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Houston Vista electronic records system and are dated to September 2016. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. In addition, the appellant contends that the Veteran was exposed to herbicide agents in service. The AOJ should seek more information from the appellant and attempt to verify any such exposure in service. Lastly, at the time of the Veteran's death, a claim of service connection for hypertension with chronic renal failure (claimed as chronic kidney inflammation) was pending before the AOJ. See 38 C.F.R. § 3.1010(g). In a February 2017 rating decision, the AOJ denied service connection for hypertension with chronic renal failure. The appellant subsequently submitted a request for substitution. While the AOJ granted the appellant's substitution request in February 2017, she was not notified of this decision until November 2021. As such, the Board finds that remand is also necessary to afford the appellant the opportunity, as the substituted claimant, to appeal the February 2017 rating decision that denied the Veteran's claim of service connection for hypertension with chronic renal failure. Furthermore, the Veteran's death certificate listed end-stage renal disease as a secondary cause of death. Because a decision on service connection for hypertension with chronic renal failure could significantly impact a decision on the issue of entitlement to service connection for the cause of the Veteran's death, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matter is REMANDED for the following action: 1. Allow the appellant an opportunity to respond to the November 2021 letter notifying her that her substitution request was granted. 2. Ask the appellant to identify the location and name of any VA or private medical facility where the Veteran received treatment for cardiac disability, kidney disability, and residuals of cerebral vascular accident, to include the dates of any such treatment. Ask the appellant to complete a VA Form 21-4142 for all records of the Veteran's treatment at Memorial Hermann Southeast Hospital and all records of his treatment for cardiac disability, kidney disability, and residuals of cerebral vascular accident from any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's outstanding VA treatment records from the Houston Vista electronic records system for the period from September 2016 through January 2017; and all such relevant records from any other sufficiently identified VA facility. 4. Attempt to verify the appellant assertion that the Veteran was exposed to herbicide agents in service. If more details are needed, contact the appellant and her representative to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the appellant and notify the appellant and her representative of VA's inability to verify the in-service herbicide agent exposure. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician as to the cause of the Veteran's death. The clinician should opine as to whether it is at least as likely as not that the Veteran's fatal cardiac arrest, end stage renal disease, focal segmental glomerulosclerosis, or history of cerebral vascular accident (1) began during active service; or (2) was related to an in-service injury or disease, including the Veteran's strep throat in service and his potential exposure to herbicide agents. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. In this regard, the clinician should acknowledge and discuss the medical literature in the claims file which indicates that kidney problems can be caused by strep bacteria (see article from WebMD addressing strep throat complications received in November 2016). Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.