Citation Nr: 21014305 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 11-24 904 DATE: March 11, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death, to include compensation pursuant 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1966 to December 1973. The Veteran died in February 2008. The appellant filed this case as the surviving spouse. In February 2016, the Board remanded the issues of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 and to service connection for the cause of the Veteran’s death, to include compensation pursuant 38 U.S.C. § 1151 for additional evidentiary development. The case was returned to the Board for appellate review, and in February 2020 the Board decided the issue of entitlement to DIC under 38 U.S.C. § 1318 on the merits and remanded the remaining issue on appeal for additional evidentiary development. The case has been returned to the Board for appellate review. In December 2015, the appellant testified at a video conference hearing before a Veterans Law Judge (VLJ) who is no longer available. The appellant was notified by letters in November 2019 and November 2020 that the VLJ who conducted the December 2015 hearing is no longer available and thus was offered the opportunity to have another hearing before a member of the Board. In response, the appellant submitted a written statement in lieu of requesting another Board hearing, and the Board proceeds with the case without an additional Board hearing. Entitlement to service connection for the cause of the Veteran’s death, to include compensation pursuant 38 U.S.C. § 1151 Pursuant to the February 2020 Board remand, VA medical opinions were provided in May 2020, July 2020, and August 2020. First, in a July 2020 VA medical opinion, the VA examiner concluded the following regarding the etiology of the Veteran’s chronic obstructive pulmonary disease (COPD): Review of records showed that [the Veteran] consulted for productive cough dating back in 1972. The records remained silent and no other records are found to establish respiratory condition relative to Agent Orange exposure while in service. Therefore it is less likely than not that the Veteran’s COPD was incurred in during or other related to his service, to include his presumed exposure to herbicide agents during service due to insufficient medical evidence to support the claim. The Board finds this rationale was based solely on the absence of documented evidence showing a link between respiratory disorder and presumed in-service herbicide exposure, and is therefore inadequate because the evidentiary record shows the Veteran’s ongoing respiratory symptomatology since separation from service. Specifically, the appellant reported her observations of the Veteran’s breathing trouble shortly after service, and review of private and VA treatment records shows assessments and treatment for bronchitis and COPD as early as April 1992. Second, in a July 2020 VA medical opinion, the VA examiner was asked to provide an opinion as to whether it is at least as likely as not that any of the Veteran’s service-connected disabilities and/or the medication(s) taken for the service-connected disabilities contributed substantially or materially to cause his death, combined to cause his death, or aided or lent assistance to the production of his death. On the contrary, the VA physician marked “the claimed condition is less likely than not proximately due to or the result of Veteran’s service[-]connected condition” and explained the following: [Service-connected] disabilities noted and do not impact the death due to sepsis (they are related to non sepsis and non respiratory physiology) – and problems respiratory failure – post colonoscopy – with the [history] of [c]rohn’s disease. The Board finds the VA physician used the incorrect evidentiary standard for determining a nexus between any of the Veteran’s service-connected disabilities and his cause of death. Of particular note is the Veteran’s service-connected PTSD and nonservice-connected Crohn’s disease. In most recent statements from the appellant and the Veteran’s daughter, they report their observations of the severity of the Veteran’s service-connected psychiatric symptomatology and unknown about his diagnosis of Crohn’s disease prior to his death. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that an additional VA medical opinion is needed to clarify the etiology of the Veteran’s COPD on a direct basis and whether the Veteran’s service-connected PTSD contributed to any cause of his death including Crohn’s disease. The matter is REMANDED for the following actions: 1. Return the claims file to the VA physician who provided the July 2020 VA medical opinion regarding COPD so a supplemental opinion may be provided. If that physician is no longer available, provide the claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Th VA physician is advised of the following: The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides during his period of active service from January 1966 to December 1973. The Veteran’s death certificate lists his immediate cause of death as respiratory failure due to (or a consequence of) intra-abdominal sepsis due to (or a consequence of) bowel perforation during complicated colonoscopy due to (or a consequence of) Crohn’s disease. At the December 2015 Board hearing, the appellant reported her observations of the Veteran’s breathing trouble shortly after service and PTSD caused him a good deal of stress and prevented him from sleeping. Review of private and VA treatment records shows assessments and treatment for bronchitis and COPD as early as April 1992. After reviewing the evidence of record, the VA physician must provide the following opinions: (a.) Whether it is at least as likely as not (50 percent or more probability) that the Veteran’s fatal respiratory failure had its origin in service or is related to an incident of service, to include herbicide exposure. Note - It is not sufficient to provide a negative opinion regarding herbicide exposure simply because the condition is not on the list of conditions presumptively associated with exposure to herbicide agents. (b.) Whether it is at least as likely as not that any of the Veteran’s service-connected disabilities and/or the medication(s) taken for the service-connected disabilities (i) contributed substantially or materially to cause his death, (ii) combined to cause his death, or (iii) aided or lent assistance to the production of his death. Note – The Veteran’s service-connected disabilities at the time of his death included PTSD, hearing loss, tinnitus, and residuals of left clavicle and right hand fractures. (c.) Whether it is at least as likely as not that the Veteran’s PTSD (i) caused or (ii) aggravated his Crohn’s disease. The VA physician must provide all findings, along with a complete rationale for his or her opinion(s) in the report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the Agency of Original Jurisdiction (AOJ) must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the appellant, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.