Citation Nr: 21011355 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-56 858 DATE: March 1, 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 December 1966 to November 1968. He died in April 2010, and the appellant is his surviving spouse. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 Department of Veterans Affairs (VA) rating decision. In December 2018, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. A May 2019 Board decision denied service connection for the cause of the Veteran’s death, and the appellant appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A July 2020 CAVC Order CAVC granted a June 2020 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board’s decision and remanding the matter to the Board for action consistent with the terms of the JMR. Entitlement to service connection for the cause of the Veteran’s death The parties to the June 2020 JMR agreed that the February 2019 opinion from a VA medical examiner, upon which the Board relied in its May 2019 decision, was inadequate and that the Board should obtain a new VA medical opinion. Specifically, the parties found that the rationale for the 2019 VA opinion was insufficient to decide the claim, stating that there was no explanation offered for certain findings on whether the Veteran’s fatal chronic obstructive pulmonary disease (COPD) was aggravated by his service-connected posttraumatic stress disorder (PTSD); that the examiner did not reconcile his unfavorable opinion with the favorable opinion of a private doctor; that he misapplied the proper standard to establish aggravation; and that based on the opinion it was unclear whether the Veteran’s injuries suffered in a 2001 motor vehicle accident contributed to his death. The Board also notes that the 2019 VA examiner cited to treatment records that do not appear to have been associated with the claims file. For example, he referred to an August 23, 2003 pulmonary outpatient note, but the claims file only contains VA primary care nursing notes from that same date. Therefore, all pertinent VA treatment records, particularly pulmonary clinic notes, that may be outstanding should be associated with the claims file. Moreover, both VA and private treatment records indicate that the Veteran received private medical care for COPD from Dr. BB and Dr. G (see records from Cape Neurosurgical Associates dated February 21, 2007 and July 21, 2009, and from Saint Francis Medical Center dated June 2, 2008). [Of record is a January 2005 pulmonary report from Washington University School of Medicine, Lung Center, but it does not refer to either Dr. BB or Dr. G, who appears to be associated with a different medical facility.] Records also indicate the Veteran had an exacerbation of his COPD in 2004, requiring hospitalization and treatment with a mechanical ventilator. The appellant should be requested to furnish these records to aid in substantiating her claim. Therefore, the matter is REMANDED for the following action: 1. Secure and associate with the claims file all outstanding inpatient and outpatient medical records relevant to the Veteran’s treatment for COPD and PTSD. (The appellant indicated in an August 2015 VA application for benefits that the Veteran received treatment beginning in 1997 from the Poplar Bluff VA Medical Center and Cape Girardeau Outpatient Center). Also, request the appellant to furnish all private medical records of the Veteran’s treatment for COPD, to include reports from Dr. BB and Dr. G and records from Saint Francis Medical Center (including from 2004 when the Veteran suffered an exacerbation of COPD). Alternatively, ask her to submit authorization for the VA to obtain such records on her behalf. If she submits an authorization, obtain the private records. 2. Then, arrange for the Veteran’s claims file to be forwarded to a physician with appropriate expertise in the pathogenesis of pulmonary disease, for review and an advisory medical opinion regarding the cause of the Veteran’s death in April 2010. On review of the record, the consulting provider should opine whether it is at least as likely as not (a 50 percent or higher probability) that any identified principal or contributory cause of the Veteran’s death was either (a) caused by, or (b) aggravated by, his period of service from December 1966 to November 1968 and/or his service-connected PTSD. Both the causal question and the aggravation question must be addressed in full. (The term “aggravation” means a permanent increase in the underlying disability, i.e., an irreversible worsening of the condition beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms.) The consulting provider must include rationale with all opinions, citing to relevant evidence, supporting factual data and medical literature, and prior medical opinions, as appropriate. If consultation with a physician with expertise in [another] specific area of medicine is deemed necessary for an opinion sought, such should be arranged. The rationale for the response must specifically address the following: (a). Whether the Veteran’s PTSD caused or contributed to his injuries sustained in a January 2001 motor vehicle accident; (b). Whether his PTSD aggravated those same injuries during a “thrashing” episode [as described by the appellant in a statement dated in October 2012 and received in November 2012, and by a VA provider, MJ, PhD, in statements received in June 2010 and April 2011] during the January 2001 hospitalization (treatment records indicate that at one point he had to be restrained); (c). Whether the injuries sustained in January 2001 caused or materially contributed to the Veteran’s COPD? (A January 2005 record from Washington University School of Medicine, Lung Center, indicates that he denied having any respiratory problems prior to his 2001 accident.) (d). The impact, if any, of the Veteran’s smoking history on the onset and progression of his COPD. (As a risk factor, how did his smoking history compare to other potential risk factors to include his January 2001 motor vehicle accident injuries/subsequent hospital “thrashing” episode and his presumed exposure to Agent Orange while serving in Vietnam?) (e). The reports, received in June 2010 and April 2011, of the Veteran’s treating VA provider, MJ, PhD. (Please reconcile any findings that conflict with Dr. MJ’s opinion relating the Veteran’s PTSD to his demise.) If the consulting provider is unable to provide an opinion requested without resort to speculation, the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or in the record (additional facts are required), or because the provider lacks the necessary knowledge or training. The consulting provider should note the following regulatory guidance. A principal cause of death means that a medical condition was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death means that a medical condition, not related to the principal cause of death, 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. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.