Citation Nr: 21073636 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-64 294 DATE: December 9, 2021 REMANDED Service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1955 to February 1957 and from May 1957 to August 1986, including service in the Republic of Vietnam (Vietnam). He died in January 2017. The Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the cause of the Veteran's death. In a May 2019 communication, the Appellant's representative made a motion to advance on the docket due to her age (over 75). The motion to advance on the docket is granted pursuant to 38 C.F.R. § 20.900(c). Appellant was scheduled two Board hearings, scheduled in October 2019 and October 2021. She did not attend either hearing and has failed to provide good cause for missing them. Accordingly, the case will be processed as though the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d) Service connection for cause of death is remanded. The Veteran's death certificate lists his cause of death as "congestive heart failure (contributing factor Agent Orange), chronic obstructive pulmonary disease with exacerbation, and bronchiectases." While the Veteran is a Vietnam War Veteran and, therefore, has conceded Agent Orange exposure, congestive heart failure and COPD are not conditions presumptively associated with herbicide exposure notwithstanding the notation on the death certificate. 38 C.F.R. § 3.309(e). Further, prior to his death, the Veteran was not service-connected for congestive heart failure or COPD. In a March 2017 rating decision, the RO denied service connection for congestive heart failure for accrued benefits purposes noting that his service treatment records were silent for this condition and it did not manifest to a compensable degree within a year of separation from service; and, further, congestive heart failure is not a condition presumptively associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). The Appellant did not appeal this aspect of the RO's denial. Rather, she argues that the Veteran's congestive heart failure was due to ischemic heart disease, which is a presumptive condition associated with Agent Orange exposure, and therefore his cause of death should be service connected. See also 38 C.F.R. § 3.307(a)(6) & 3.309(e). In further support of the appeal, the Veteran's private physician wrote an opinion dated December 2017 indicating that his cause of death was "congestive heart failure with Agent Orange as a contributing factor" and, therefore, "we can infer that his [congestive heart failure] was due to [ischemic heart disease] which was due to Agent Orange exposure." The Board does not find the opinion persuasive because there is no supporting rationale to explain the "inference" that the Veteran had ischemic heart disease in addition to congestive heart failure. The opinion, however, raises a reasonable possibility of a nexus to service and, therefore, a medical opinion is necessary to clarify the issue. Additionally, even if the Veteran only had congestive heart failure, the mere fact that the condition is not a presumptive condition is not fatal to the Appellant's claim. That is, even if a disease is not included on the list of presumptive diseases, a nexus can still be established based on direct connection with consideration of factors such as: medical studies that may or may not be found persuasive, whether there were other risk factors that might be the cause of the condition, and whether the condition manifested itself in an unusual manner. Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). In light of the Veteran's conceded Agent Orange exposure, the notation on his death certificate, the private physician's December 2017 opinion, and the ambiguity with regard to whether he had ischemic heart disease in addition to congestive heart disease, the Board finds a medical opinion is necessary. As a final note, the Board also highlights that after the Form 8 certification to the Board, the Appellant's representative filed a letter in May 2019, attaching a copy of a medical record taken from the Veteran's medical records at Duke Health in September 2008. It states that a CT scan showed "coronary arterial calcification," which he argues, supports the theory that the Veteran had ischemic heart disease. This medical evidence has never been considered by the Agency of Original Jurisdiction (AOJ) nor has such consideration been waived. Since it is necessary to remand the matter for a medical opinion, the Board also directs the RO to take steps to ensure that any outstanding Duke Health records, to include the CT scan referenced in this September 2008 record, be obtained and considered prior to the matter being returned to the Board. The matters are REMANDED for the following action: 1. Obtain any VA treatment records for the Veteran which are not already associated with the record. 2. Ask the Appellant to submit another valid VA Form 21-4142 or provide treatment records not already associated with the record, to include Duke Health and any treatment records for the period January 1, 2008, through January 1, 2009. Ensure that the requested records are associated with the claims file. 3. After the above has been completed and records have been obtained, to the extent available, obtain a VA medical opinion for the cause of death claim on appeal from an appropriate clinician, to include ascertaining the nature and likely etiology of the Veteran's heart disease. The examiner must review the claims file. The examiner is asked to provide a response to the following: - Does the evidence indicate that the Veteran had ischemic heart disease at the time of his death? o If so, did his ischemic heart disease substantially or materially contributed to, combined to cause, or aided or assisted the congestive heart disease and/or COPD in causing the Veteran's death? The examiner is asked to comment on the December 2017 private opinion noting that it can be "inferred" that the Veteran had ischemic heart disease, which led to congestive heart disease, which led to his death. - If no ischemic heart disease was found, opine as to whether the listed causes of death on the death certificate, to include congestive heart failure and/or COPD were at least as likely as not related to service, to include conceded in-service Agent Orange exposure. The examiner is advised that a negative opinion cannot be based solely on the fact that congestive heart disease and COPD are not on the list of diseases that are presumptively associated with exposure to herbicide agents. Rather, in providing this opinion, the examiner must address factors such as: medical studies that may or may not be found persuasive, whether there are other risk factors that led to the conditions, and whether the conditions manifested in an unusual manner. See Polovick v. Shineski, 23 Vet. App. 48, 52-53 (2009). 4. After completing the above, and any additionally indicated development, re-adjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.