Citation Nr: 21074428 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-11 721 DATE: December 15, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1946 to February 1959, with subsequent periods of active duty for training and inactive duty for training through September 1989. The Veteran died on March [REDACTED], 2016. The appellant in this case is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA) in Manila, Philippines, which denied service connection for cause of death. The Veteran had no outstanding claims with VA at the time of his death, and thus no determination of substitution is necessary or appropriate in this case. 38 U.S.C. § 5121A, 38 C.F.R. § 3.1010; see Reliford v. McDonald, 27 Vet. App. 297 (2015). In August 2021, the appellant testified at a virtual hearing held at the before the undersigned Veterans Law Judge (VLJ). A transcript of these proceedings has been associated with the claims file. The Veteran at the time of his death did not have any representation. As the appellant, the Veteran's surviving spouse, is also unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Entitlement to service connection for cause of death is remanded. The appellant is seeking entitlement to service connection for cause of death, having filed a claim in April 2016 asserting that the listed acute respiratory failure secondary to pancreatic cancer, with an underlying cause of sepsis secondary to pneumonia in an immunocompromised host which caused the Veteran's death was related to earlier diagnosed respiratory or pulmonary illness related to asbestos exposure from the Veteran's Navy service. During the Veteran's lifetime, he asserted in an earlier claim that he was exposed to ionizing radiation from a B-29 bomber accident at what is now Travis Air Force Base, California, where nuclear weapons carried by the bomber broke open and exposed the nearby population with radiation from the nuclear material. In the appellant's notice of disagreement, and reaffirmed in testimony before the undersigned VLJ in August 2021, she stated the Veteran had claimed service connection for a respiratory disability but had been denied. The appellant also asserted the Veteran's diagnosed arteriosclerotic heart disease should have been service connected. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312(a). To establish service connection for the cause of a Veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability 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. 38 C.F.R. § 3.312(c)(1); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). At the time of the Veteran's death, he was not service-connected for any disability. As such, the question for this appeal is whether service connection is warranted for the listed primary or contributing causes of death. The Veteran died on March [REDACTED], 2016, and his original death certificate, dated April [REDACTED], 2016, noted the primary cause of death to be acute respiratory failure secondary to pancreatic cancer, with an underlying cause of sepsis secondary to pneumonia in an immunocompromised host. At the time of his death, the Veteran was not service connected for any disability. The RO issued its September 2016 negative decision regarding service connection as cause of death based on that original death certificate. While the Veteran received compensation and pension examinations during his lifetime, among other VA medical care, no medical opinion has been provided as part of this case regarding service connection cause of death, and the Board finds that remand for a retrospective opinion is necessary. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has significant time in the Navy Reserve through September 1989 following his initial 13-year period of active duty from 1946 to 1959, sufficient that he was receiving military retirement pay at the time of his death, but there is little medical evidence in the claims file of personnel and/or medical records related to that subsequent reserve service, considering the Veteran served almost three decades in reserve roles. As such, then, the appellant's claims are remanded for a retrospective opinion to address the possible relationship of the Veteran's earlier respiratory, pulmonary and/or any other related disease. As the Board cannot make medical judgments, a remand is required for an addendum medical opinion to address this possibility. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Chotta v. Peake, 22 Vet. App. 80 (2008). The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate VA medical professional for the appellant's claim for service connection cause of death, to include an opinion regarding direct service connection and all other theories of service connection available in this appeal. The examiner should opine to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran's acute respiratory failure secondary to pancreatic cancer, with an underlying cause of sepsis secondary to pneumonia in an immunocompromised host, are related to his active duty service, or are otherwise related to any in-service disease, event, or injury? A detailed rationale supporting the examiner's opinions should be provided. In forming the opinions, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the appellant, she and her representative, if any, should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The appellant and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.