Citation Nr: 21011854 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-28 295 DATE: March 2, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The appellant is the surviving spouse of the Veteran who served on active duty from August 1968 to August 1971, including service in the Republic of Vietnam July 1969 to July 1970. The Veteran died in June 2010. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in March 2019, which granted a joint motion for remand (JMR) vacating a May 2018 Board decision and remanding the issue on appeal for additional development. The matter initially arose from an October 2010 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was most recently remanded in September 2020. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. VA medical opinions obtained in November 2020 addressed questions as requested in the September 2020 remand order. However, in addressing the questions concerning aggravation of nonservice-connected disabilities by the Veteran’s service-connected posttraumatic stress disorder (PTSD), the examiner applied a “permanent aggravation” standard. In answering the questions identified as (b.) concerning aggravation in smoking (tobacco use) in response to PTSD and/or military trauma and (e.) concerning aggravation of his chronic obstructive pulmonary disease (COPD). Service connection on a secondary basis may be established for any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). As the findings of the November 2020 medical opinion used an erroneous standard, i.e. permanent aggravation, the Board has little choice but to return the matter for an addendum opinion. The matter is REMANDED for the following action: Obtain clarifying opinions from an appropriate clinician that includes consideration of the lay statements added to the record in January 2021 and that addresses whether the Veteran’s COPD and pneumonia underwent an incremental increase in disability, regardless of its permanence, due to the service-connected PTSD disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The examiner must separately respond to the following questions without application of a “permanent aggravation” requirement: a. Is it at least as likely as not that the Veteran’s service-connected PTSD was manifested by severe depression that caused the Veteran to be inactive such that his general health deteriorated, and he developed pneumonia? b. Is it at least as likely as not that the Veteran’s tobacco use was a form of self-medication for his PTSD? If so, the examiner must address whether: (1) the service-connected PTSD caused the Veteran to use tobacco products after service; (2) if the use of tobacco products as a result of the service-connected PTSD was a substantial factor in causing a secondary disability; and (3) the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. c. Is it as least as likely as not that the Veteran’s diagnosed COPD and pneumonia was caused or aggravated by the Veteran’s active military service? In doing so, the examiner must address whether it is at least as likely as not that the Veteran’s COPD and pneumonia were related to the Veteran’s in-service Agent Orange exposure while serving in Vietnam. The examiner must also address the pulmonary fibrosis factor. d. It is as least as likely as not that the Veteran’s diagnosed COPD and pneumonia was caused or aggravated by the Veteran’s conceded exposure to herbicide agents in service? e. An opinion is also requested as to whether the Veteran’s service-connected PTSD caused or aggravated (i.e. incremental increase in disability, regardless of its permanence) the Veteran’s COPD and pneumonia. f. Lastly, provide an opinion as to whether it is at least as likely as not that any service-connected disability (singly or jointly) caused the Veteran’s death; contributed substantially or materially to cause death; or aided or lent assistance to the production of death. A complete rationale for all opinions expressed should be provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.