Citation Nr: 21008681 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 08-16 343A DATE: February 18, 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 from September 1942 to September 1945. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2018 the Board denied entitlement to service connection for the cause of the Veteran’s death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 order, the Court granted a Joint Motion (JMR) of the parties and remanded the case to the Board for action consistent with the JMR. Cause of Death The Veteran died in April 2007. The record includes the April 2007 death certificate and an August 2007 amended death certificate. The original death certificate of record indicated the immediate cause of death was end-stage Parkinson’s disease. The amended death certificate stated that the immediate cause of death was aspiration pneumonia and the underlying causes of death were dysphagia and advanced Parkinson’s disease. The amended certificate included an affidavit by the signing physician which stated that the Veteran had advanced Parkinson’s Disease which severely limited activity and ability to swallow and that he could not handle his secretion due to severe disease and developed pneumonia and expired. At the time of the Veteran’s death, service connection was in effect for residuals of gunshot wound right chest with fracture deformity of 6th and 7th ribs, right two deep scars of skin with underlying tissue with pleural thickening and deformity of right dome of diaphragm with retained minute foreign particles of the soft tissue of the axilla. The Veteran was also service connected for psychoneurosis, psychomatic reaction. The May 2019 JMR determined that remand is required in this case because the Board erred by not ensuring that the Department of Veterans Affairs (VA) complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38C.F.R. §3.159(c) to provide a medical opinion that was adequate for rating purposes. In particular, the May 2019 JMR found that an October 2016 VA opinion (and an October 2017 addendum opinion) did not adequately address whether the Veteran’s service-connected psychoneurosis aggravated the Veteran’s Parkinson’s Disease. As an insufficient rationale was provided, the May 2019 JMR found that remand is required for the Board to obtain a new VA medical opinion that provides an opinion and adequate rationale as to whether the Veteran’s service-connected psychoneurosis aggravated the Veteran’s Parkinson’s Disease. While the Board regret additional delay, remand is required for an adequate VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A March 2020 addendum opinion was provided. The examiner opined that Parkinson’s disease was less likely than not aggravated by service- connected psychoneurosis. The examiner stated Parkinson’s disease is a neurodegenerative disorder. The examiner stated the exact etiology is unknown but the factors that have been associated with the disease are genetic predisposition and exposure to toxins. The examiner stated psychiatric disorders have never been implicated as a cause or to aggravate Parkinson’s disease. The examiner noted a June 2005 VA treatment record that was negative for PTSD and depression. The examiner stated the Veteran did have a hospitalization for depression in 1945 and noted from March 1951 indicating anxiety but in the medical records reviewed there is no further hospitalizations or diagnoses of mental health disorders since that time. A review of a February 2007 private treatment record showed while he was hospitalized the Veteran was treated for a mental status change. The Veteran experienced confusion, agitation, and refused to let nurses or anyone touch him. The private provider assessed altered mental status. The March 2020 VA opinion indicated no mental health treatment since 1951 and is based on an inaccurate factual premise. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the March 2020 VA examiner indicated exposure to toxins is associated with Parkinson’s disease. The Veteran’s service- connected residuals of a gunshot wound included “retained minute foreign particles.” The examiner failed to address whether the retained particles would constitute toxins. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, remand is required for an adequate opinion. The matters are REMANDED for the following action: 1. Contact the appellant and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the appellant and her representative. 2. After any additional records are associated with the claims file, obtain a medical opinion from a qualified VA examiner. The entire claims file should be made available and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. First, the examiner must indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected psychoneurosis aggravated the Veteran’s Parkinson’s Disease. Second, the examiner must indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected gunshot wound residuals including, retained minute foreign particles of the soft tissue of the axilla caused or aggravated the Veteran’s Parkinson’s Disease. If the opining examiner finds aggravation, he or she must then opine as to whether the degree of aggravation contributed substantially or materially to the production of death, that it combined to cause death, or that it aided or lent assistance to the production of death. The examiner must specifically address the March 2020 VA opinion that indicated exposure to toxins is associated with Parkinson’s disease. 3. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.