Citation Nr: 21021695 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-24 708 DATE: April 13, 2021 REMANDED The issue of entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to April 1969, with service in Vietnam. The Veteran died in July 2006 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2018, January 2020, and May 2020 and remanded for additional development. 1. The issue of entitlement to service connection for cause of death is remanded. Although the Board sincerely regrets the additional delay, a remand is required for a new VA medical opinion. The Veteran’s immediate cause of death as listed on his death certificate is respiratory failure and end stage liver disease with cirrhosis and ascites listed as conditions contributing to death. See March 24, 2015, Application for Dependency and Indemnity Compensation (DIC). At the time of his death, the Veteran was service connected for diabetes mellitus II pursuant to the presumptive service connection provisions for diseases related to herbicide exposure in Vietnam. The Veteran also had a current diagnosis of ischemic heart disease at the time of his death, identified as coronary artery disease, another enumerated disease presumed to be related to herbicide exposure. The appellant contends that service-connected diabetes mellitus, exposure to herbicides, and ischemic heart disease caused or contributed to the Veteran’s death. January 26, 2016, Statement in Support of Claim. The appellant submitted medical literature in support of her contentions in August 2015. See August 12, 2015, Fax Cover Sheet. In a July 2006 discharge summary, VA treatment records indicate the Veteran had end stage liver disease secondary to nonalcoholic steatohepatitis (NASH) and presented with increased ascites and mental status changes. July 22, 2016, Discharge Summary. The summary further notes the Veteran’s other medical problems included morbid obesity and diabetes mellitus. Id. In the autopsy report, the pathologist noted end stage liver disease felt to be secondary to NASH. See March 24, 2015, Application for DIC. The pathologist concluded the most significant findings were morbid obesity, anasarca, and advanced cirrhosis of the liver. Id. In a May 2020 decision, the Board remanded this issue for a medical opinion as to whether service-connected diabetes mellitus, and/or the treatment thereof, caused or aggravated the Veteran’s fatal NASH. May 12, 2020, BVA Decision. In June 2020, a clinician reviewed the Veteran’s claims file and rendered a negative nexus opinion. June 10, 2020, VA Examination. The examiner concluded that the relationship between diabetes mellitus II and NASH was not relevant as the Veteran did not, in fact, have NASH. Id. In reaching this conclusion, the examiner reasoned that the Veteran’s diagnosis of NASH in 2006, at the time of death, was based on inaccurate information from the Veteran and family that the Veteran had no current or previous heavy alcohol use. Id. The examiner pointed to the Veteran’s statements during a 2003 VA examination as evidence that the Veteran had a significant history of heavy alcohol use from 1970 until 1997 with light to moderate alcohol use from 1997 until his death. See id. Based on his evaluation of the Veteran’s alcohol use, the examiner determined that the correct liver diagnosis as of 2005 was alcoholic steatohepatitis rather than nonalcoholic steatohepatitis. Id. The examiner further reasoned that alcoholic steatohepatitis is driven by history of alcohol intake and diabetes mellitus II had no causal or aggravating relationship to the Veteran’s liver disease, cirrhosis, or his death. Id. The examiner explained that histopathologically, NASH and alcoholic steatohepatitis appeared the same, with fatty changes, balloon degeneration of hepatocytes, and fibrotic changes. Id. As a result, the pathologist who performed the autopsy could not distinguish between the two diseases based on liver biopsy alone. Id. The examiner’s opinion is based, in part, on an inaccurate assessment of the deliberate and informed evaluation made by clinicians who diagnosed NASH just prior to the Veteran’s death. The clinicians were aware of the Veteran’s history of heavy alcohol use and did not make that diagnosis under the premise that the Veteran had no current or previous heavy alcohol use. An April 21, 2006 gastroenterology consult note reveals the etiology of cirrhosis was suspected as NASH with or without the remote history of heavy alcohol use. See January 26, 2016, Medical Treatment Record – Government Facility. A July 6, 2006 gastroenterology consult note addendum explains that the working assessment on the etiology of cirrhosis was metabolic syndrome with body mass index of 53 percent, also referred to as NASH or nonalcoholic fatty liver disease (NAFLD), with some uncertainty about the contribution of previous alcohol intake. Id. In addition, the examiner’s conclusion that the Veteran engaged in heavy alcohol use from 1970 to 1997 is not supported by the evidence. In 2003, the Veteran indicated that he had stopped drinking three times on his own and since 1997 he only drank wine occasionally at dinner. See August 21, 2003, VA Examination. There is insufficient evidence in the record to determine the periods of time the Veteran stopped or reduced his alcohol intake during this timeframe. The examiner’s reliance on inaccurate factual premises renders his opinion inadequate for adjudication purposes. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Remand is necessary to obtain a new VA medical opinion on the nature and etiology of the Veteran’s end stage liver disease. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s end stage liver disease. The clinician should review the virtual file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that service-connected diabetes mellitus II, or the treatment thereof, caused or contributed substantially or materially to the immediate cause of the Veteran’s death. The examiner should acknowledge and address the July 2006 discharge clinical assessment noting that the Veteran had end stage liver disease secondary to nonalcoholic steatohepatitis (NASH). The examiner should acknowledge and discuss the August 2015 medical literature submitted by the appellant discussing NASH and non-alcoholic fatty liver disease. A rationale for all opinions is to be provided. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, Associate 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.