Citation Nr: 21075693 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-35 482A DATE: December 21, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1970 to November 1971. The Veteran passed away in June 2014, and the appellant is his surviving spouse. In October 2018, the Board issued a decision denying entitlement to service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court issued a Memorandum Decision vacating the Board's October 2018 decision and remanding the appeal to the Board for additional development and consideration. In September 2020, the Board issued another decision denying entitlement to service connection for the cause of the Veteran's death. The appellant appealed the September 2020 Board decision to the Court. In July 2021, the Court granted a Joint Motion for Remand, vacating the Board's September 2020 decision and remanding the appeal to the Board for additional development and consideration. Entitlement to service connection for the cause of the Veteran's death Initially, the Board notes that the appellant has submitted additional evidence and argument in support of her appeal since the appeal was last considered by the Agency of Original Jurisdiction (AOJ) in April 2020. Although an automatic waiver of consideration by the AOJ would normally apply to this evidence, in August 2021, the appellant specifically requested that her appeal be remanded back to the AOJ for review of this evidence in the first instance. Thus, remand is required for the AOJ to address the new evidence of record. In a July 2021 JMR, the parties agreed that the April 2020 VA opinion relied upon by the Board in its September 2020 decision was inadequate because the rationale focused solely on a lack of medical evidence in the service treatment records and provided a conclusory statement regarding the Veteran's hypertension and death without explanation. Accordingly, remand for a new VA opinion is warranted. The Board notes that the Veteran's service treatment records document complaints of pain or pressure in the chest, palpitation or pounding heart, dizziness or fainting spells, headaches, syncope, and left-sided chest pain. Although a September 1971 electrocardiogram was normal, the service treatment records document blood pressure readings that meet VA's definition of hypertension. Additionally, the post-service medical treatment records show diagnoses of and treatment for ischemia, chest pain, suspected coronary artery disease, and hypertension, and a September 2014 letter from D.A., M.D. notes that the Veteran was diagnosed "with a rare and complex cerebrovascular disorder." Further, an April 2015 private medical opinion from D.E., M.D. opined that it was likely that the Veteran had coronary artery disease prior to his death. A June 2014 cardiology note from B.R.L., M.D. reflects that the Veteran developed elevated troponin after undergoing extacranial to intracranial arterial bypass. Post-procedural imaging showed infarcts of the cerebellum, pontomedullary junction, left pons, left thalamus, left hippocampus, and bilateral posterial parietal lobes and a large hematoma from the left lower extremity vein graft. The note mentions a history of chronic hypertension and Agent Orange exposure. The Veteran's death certificate identifies his cause of death as acute respiratory failure due to, or as a consequence of, cerebral edema and cerebral ischemic infarction. In addition to the evidence and argument submitted by the appellant, the examiner should address and discuss this pertinent evidence in the opinion provided. The matters are REMANDED for the following action: 1. Obtain a new VA opinion from a physician possessing suitable expertise to render an opinion regarding the etiological relationship, if any, between the Veteran's symptoms and objective findings during military service and the cause of his death. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the Veteran's service treatment records and his post-service medical records. Following a complete review of the Veteran's claims file, the examiner is asked to provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the cause of the Veteran's death was due to, related to, or otherwise etiologically associated with an in-service event, injury, or disease? (b.) Is it at least as likely as not that the Veteran's hypertension or any other cardiac condition(s) had its onset during military service or manifested within one year of service discharge? (c.) If so, is it at least as likely as not that there is an etiological relationship between the Veteran's hypertension or other cardiac condition and his cause of death? A complete rationale for all opinions must be provided. In rendering the opinion the examiner is asked to specifically discuss the evidence of dizziness, syncope, headaches, elevated blood pressure, heart palpitations, left-sided chest pain, bilateral foot edema, and chest pressure documented in the service treatment records as well as the June 2014 cardiology consultation of Dr. B.R.L., the September 2014 medical opinion of Dr. D.C.A., and the April 2015 medical opinion of Dr. D.L.E. If it is not possible to provide the above-requested opinion(s) without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner (i.e., does not have the knowledge or training). 2. Readjudicate the issue on appeal with consideration of all evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the appeal to the Board, if otherwise in order. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.