Citation Nr: 21011627 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 04-40 525 DATE: March 2, 2021 REMANDED Entitlement to service connection for cause of death is remanded. Entitlement to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38 United States Code is remanded. REASONS FOR REMAND The Veteran had active duty from February 1975 to May 1975. He died in February 1989. The Appellant is his surviving spouse. The Board issued a decision in this case in December 2018. The Veteran’s attorney moved to have the decision vacated. In August 2019, the Board vacated the decision on the basis that the Board’s November 2018 docketing letter was mailed to an incorrect address resulting in a denial of due process of law to the appellant. The appellant’s claims were then remanded by the Board in March 2020 to obtain an addendum medical opinion that considered the appellant’s lay testimony and that did not rely on the absence of medical evidence in rendering the opinion. 1. Entitlement to service connection for cause of death is remanded. This case must be remanded again because there has not been substantial compliance with past VA remands. See Stegall v. West, 11 Vet. App. 268 (1998). The Board regrets that this case must be remanded again, but notes that in November 2020 the appellant’s attorney specifically requested that the appellant’s claims be remanded again. The appellant’s claims were most recently remanded by the Board in March 2020 for a VA medical opinion. A medical opinion was obtained in April 2020 from a VA general practice physician assistant. Although the March 2020 Board decision did not specify that the opinion must be by a physician, a December 2013 Board remand specified that the opinion was to be from a pulmonologist or a physician with the requisite expertise to opine on matters of pulmonology. The February 2018 opinion obtained in response to the December 2013 Board remand was obtained from a VA pulmonologist and was found to be insufficient resulting in the March 2020 remand for a new opinion. Unfortunately, the March 2020 remand did not note that the Board had previously specified that a specialist opinion was necessary and the April 2020 VA opinion was not provided by a physician. Given that the Board had previously specified that a physician opinion was required, and that the appellant has questioned the adequacy of the April 2020 VA physician assistant opinion, the Board must remand for a new opinion by an appropriate physician. Additionally, the April 2020 medical opinion focused on whether the Veteran had asthma due to service and whether his death was due to asthma complications. The March 2020 Board remand specified that the examiner was to provide an opinion as to whether the Veteran’s cause of death was related to service, to include the documented pulmonary disorders during service. Consequently, the April 2020 opinion does not substantially comply with the March 2020 Board remand and a new VA medical opinion must be obtained. The Board recognizes that the appellant asserted that the Veteran had asthma and that asthma contributed to his death. However, an opinion must be obtained regarding whether any respiratory disorder the Veteran developed as a result of service contributed substantially and materially to the Veteran’s death. The opinion must also discuss the respiratory ailments the Veteran had during service, the post service VA treatment records showing complaints of respiratory ailments, and the appellant’s reports that the Veteran had respiratory ailments continuously after discharge from service. 2. Entitlement to Dependents’ Educational Assistance benefits under Chapter 35, Title 38 United States Code is remanded. Further development and adjudication of the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death may provide evidence in support of her claim for DEA. As the claims are inextricably intertwined, remand is required pending the outcome of the service connection for cause of death claim. The matters are REMANDED for the following action: 1. Forward the claims file to a physician with the requisite expertise to opine on matters of pulmonology for a medical opinion regarding whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s cause of death was related to service, to include the documented pulmonary disorders he experienced in 1975 (during service). 2. As part of the explanation for the opinion, the examiner is asked to review the appellant’s assertions regarding the Veteran’s respiratory symptoms after service that the Veteran was sick, coughed, and had breathing problems chronically and continually after service (March 2005 testimony and November 2013 Declaration submitted in December 2013). In rendering an opinion, the examiner is to accept the appellant’s statements describing the Veteran’s symptoms as true. The examiner should also discuss the post service VA treatment records showing that the Veteran sought VA treatment from May 1984 to December 1984 in which the Veteran reported suffering from asthma and bronchitis. The examiner should discuss whether the evidence as a whole indicates that the Veteran experienced a respiratory disorder chronically and continuously following service that substantially and materially led to the Veteran’s death. The rationale of the opinion should not principally rely on the absence of medical evidence. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.