Citation Nr: 21012183 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-27 477 DATE: March 3, 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 July 1982 to July 1985. He died in October 2014, and the appellant is his surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 Department of Veterans Affairs (VA) administrative decision. A January 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 June 2020 CAVC Memorandum Decision vacated the Board’s decision and remanded the matter to the Board for action consistent with the Memorandum Decision. Entitlement to service connection for the cause of the Veteran’s death In its June 2020 Memorandum Decision, the CAVC determined that the Board committed prejudicial error when it applied the wrong legal standard to the evidence of record. In declining to obtain a medical opinion to determine if the Veteran’s cause of death was related to service, the Board applied the duty to assist provisions of 38 U.S.C. § 5103A(d) when it should have applied 38 U.S.C. § 5103A(a). The latter provision requires the VA to assist a claimant unless “no reasonable possibility exists that such assistance would aid in substantiating the claim.” The CAVC returned the case to the Board to apply the proper standard, to determine whether an examination is warranted under 38 U.S.C. § 5103A(a), and to provide an adequate statement of reasons or bases for its decision. The CAVC also indicated that after considering the pertinent evidence of record, it was “unclear to [the CAVC] how ‘no reasonable possibility exists’ that a medical examination ‘would aid in substantiating the claim.’” Upon review of the record, the Board will remand the case in order to obtain a medical opinion addressing the appellant’s contentions. The matter is REMANDED for the following: Arrange for an appropriate clinician or clinicians (preferably, a psychiatric or psychologist) to review the Veteran’s claims file and provide an advisory opinion regarding the likely cause (or contributory cause) of the Veteran’s death. The consulting provider or providers is/are asked to respond to the following: (a). Is it at least as likely as not (a 50 percent or greater probability) that a principal or contributory cause of the Veteran’s death in October 2014 was related to his period of service from July 1982 to July 1985? (b). Given the pertinent evidence of record to include medical records documenting the Veteran’s psychiatric symptoms and diagnoses, specifically comment upon the merits of the appellant’s contentions that the Veteran developed a psychiatric disorder during service (she believes he had posttraumatic stress disorder due to the in-service stressor of witnessing a fellow serviceman being crushed by an anchor while serving aboard the USS Sacramento) and that his psychiatric disorder contributed to his fatal heart and cardiovascular-related diseases (as noted in an autopsy report and amended death certificate). The consulting provider must include complete rationale with all opinions, citing to relevant evidence, and supporting factual data and medical literature, as appropriate. If an opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the examiner 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 by a deficiency in the record or examiner (additional facts are required, or the examiner does not have the requisite knowledge or training). If such is the case, the examiner should identify the further specialist’s opinion/other information that is needed to provide the requested opinion. The consulting provider is advised of 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.