Citation Nr: 21010625 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-20 326 DATE: February 25, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Appellant is the surviving spouse of the Veteran who died in April 2012 and who served his country honorably on active duty from February 1952 to March 1971. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision by the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota. Jurisdiction of this matter has been transferred to the VA Regional Office (RO) in Oakland, California. The Appellant testified at a Board hearing held at the RO in August 2017. The record contains a transcript of the hearing. The Board denied the above claim (as well as a claim of entitlement to benefits under 38 U.S.C. § 1318) in an April 2018 Board Decision. The Appellant appealed the denial of entitlement to service connection for cause of death to the United States Court of Appeals for Veterans Claims (Court), but did not appeal the denial of the Section 1318 claim. The Court issued an April 2020 Memorandum Decision setting aside the Board’s denial of the claim of entitlement to service connection for cause of death and remanded the matter for readjudication by the Board. The April 2020 Memorandum Decision indicated that the Board erred in failing to consider whether VA’s duty to assist required obtaining an opinion with respect to whether the Veteran’s service-connected posttraumatic stress disorder (PTSD) was a primary or contributory cause of the Veteran’s death. See April 2020 Memorandum Decision (citing 38 U.S.C. §§ 5103A(d)(1) and 7104(d)(1)). Given the findings of the Court, remand for an opinion is appropriate. See December 2002 Private Treatment Note (“The night before last, he woke up with a substernal chest discomfort and some vigorous heart beating. It turns out, he has posttraumatic stress disorder and in talking things over with him it sound[s] like that is more or less what all of this relates to.”). Moreover, subsequent to the April 2018 Board Decision, the National Academy of Sciences (NAS) published Veterans and Agent Orange: Update 11 (2018) which the Appellant raised in her pleadings to the Court. In Update 11, the NAS concluded that there was “sufficient evidence of an association” between exposure to herbicide agents and hypertension. See Veterans and Agent Orange: Update 11, at p 7 (2018). The Veteran served in the Republic of Vietnam during the Vietnam Era, so was presumptively exposed to herbicide agents. An opinion regarding whether the Veteran’s hypertension was related to his active service and, if so, whether his hypertension was a primary or contributory cause of his death will be helpful in addressing the Appellant’s claims as developed since the April 2018 Board Decision. The matters are REMANDED for the following action: 1. Refer the Veteran’s file to obtain the following opinions: (a) Was the Veteran’s PTSD at least as likely as not a principal or contributory cause of his death? The Appellant argues that the Veteran died due to cardiovascular/respiratory conditions that were caused by or aggravated by his service-connected posttraumatic stress disorder (PTSD). The Court’s Memorandum Decision indicated, “[t]he record not only reflects the contention that the veteran's PTSD caused additional stresses that contributed to his death, but the record also reflects that [his] PTSD caused years of alcohol abuse and difficulty sleeping.” A disability will be considered 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. To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It would be helpful if the examiner commented on any treatment records, including but not necessarily limited to, the December 2002 private progress note referenced above, which indicate a possible association between his PTSD and the medical conditions which ultimately caused his death. (b) Was the Veteran’s hypertension at least as likely as not related to his active service, particularly including his exposure to herbicide agents (e.g. Agent Orange) during his service in Vietnam? Please consider the recent NAS Update in light of the Veteran’s medical history. (c) If the answer to (b) is affirmative (his hypertension is related to service), then was the Veteran’s hypertension at least as likely as not a principal or contributory cause of his death? A disability will be considered 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. To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.