Citation Nr: 21022741 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-11 475 DATE: April 19, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. Entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to June 1992. He died in October 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2012 rating decisions of the Department of Veterans Affairs (VA) Pension Management Center (PMC). In the March 2016 substantive appeal, the appellant requested a hearing before a Veterans Law Judge. In August 2016, she requested to have the hearing request withdrawn. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.704(e). The Board recognizes that the appellant submitted a VA Form 21-22A, Appointment of Individual as Claimant’s Representative, designating A.S., Jr. as her representative in June 2015. However, her representation appeared to be revoked later that year. See December 2015 Correspondence. In December 2020, the Board attempted to clarify whether the appellant was represented in her appeal. She did not respond to the clarification letter. Accordingly, the appellant is unrepresented. Should she wish to appoint a new representative, she may do so as her case must again be remanded. 1. Entitlement to service connection for the Veteran's cause of death is remanded. The appellant asserts entitlement to service connection for the Veteran’s cause of death. Specifically, she has stated that the Veteran’s death was related to his service in Southwest Asia or as a result of his exposure to Agent Orange. See March 2012 Application for Dependency and Indemnity Compensation (DIC); May 2013 Notice of Disagreement. In order to establish service connection for the cause of a veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute a contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(2). The Veteran’s immediate cause of death is listed as metastatic small cell lung cancer, with hypertension, coronary artery disease (CAD), and chronic obstructive pulmonary disease (COPD) listed as significant conditions contributing to death. See October 2011 Certificate of Death. At the time of his death, service connection had not been established for any disability. Accordingly, the central issue in the present cause of death case is whether service connection is warranted for the Veteran’s hypertension, CAD, or COPD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Hypertension and CAD are cardiovascular-renal diseases, which make them “chronic disease[s]” for purposes of 38 C.F.R. § 3.309(a); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran’s service treatment records (STRs) reflect in-service complaints of chest pains and elevated blood pressure readings. See November 1982 Treatment Record; March 1983 Treatment Record; February 1987 Treatment Record; January 1992 Report of Medical Examination (reflecting a blood pressure reading of 130/90 and history of chest pains). Post-service treatment records reflect elevated blood pressure readings as early as December 1993. See VA Medical Certificates dated December 1993; November 1998; March 2001. A January 2016 VA medical opinion provided a negative nexus opinion, finding that the Veteran’s metastatic small cell lung cancer was less likely than not related to his active duty service. However, the medical opinion did not provide opinions as to whether the Veteran’s hypertension, CAD, or COPD were related to his active duty service. Regarding the appellant’s claim as it relates to Agent Orange, the Board notes the Veteran did serve in the Korean Demilitarized Zone (DMZ), but his service from April 1982 to April 1983 was outside the time requirement for presumptive service connection for herbicide exposure. See 38 C.F.R. § 3.307(a)(6). Although the Veteran is not entitled to presumptive service connection for exposure to herbicide agents, service connection may be established if his alleged herbicide exposure is verified. On remand, the Agency of Original Jurisdiction (AOJ) should develop this theory of entitlement, as set forth below. The appellant has also asserted that the Veteran’s cause of death was related to his Gulf War service. On remand, a medical opinion addressing whether the Veteran’s cause of death was related to his active service, to include environmental exposures in Southwest Asia, should be obtained. Given the evidence of cardiovascular symptoms in service and shortly after service, a VA examination is warranted for an opinion addressing whether the Veteran’s hypertension, CAD, and COPD were incurred in or were otherwise related to his active service. Finally, the Board notes that the Veteran’s complete VA treatment records appear to be missing from the claims file as there is a record gap from March 2001 to October 2011. As this matter is being remanded the Veteran’s complete VA treatment records should be obtained. 2. Entitlement to burial benefits is remanded. Since the burial benefits claim is inextricably intertwined with the remaining service connection claim, it is also being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s complete VA treatment records, to include aby records dated from March 2001 to October 2011. 2. Request the appellant provide details regarding the Veteran’s claimed herbicide exposure. 3. After the completion of (2), take all appropriate steps to verify the Veteran’s claimed herbicide exposure during service in Korea, including along the DMZ, from April 1982 to April 1983. Provide the appellant the appropriate notice of any conclusions of such verification. 4. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s cause of death is related to his active duty service, to include any environmental exposures in Southwest Asia or confirmed herbicide exposures. The claims file should be made available to the examiner for review in conjunction with the opinion, and the examiner should note such review. Following a review of the claims file, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s chronic obstructive pulmonary disease (COPD), hypertension, and/or coronary artery disease was etiologically related to any incident of service, to include in-service environmental exposures in the Southwest Asia Theater of Operations. * In reaching this opinion, the examiner should consider and address the following: • The Veteran’s in-service environmental exposures in the Southwest Asia Theater of Operations, to include from burn pits and oil well fires; • The Veteran’s in-service complaints of chest pain, to include in November 1982, February 1983, March 1983, February 1987, and January 1992 (separation examination); • The Veteran’s in-service elevated blood pressure readings of 130/90 on January 15, 1992 (separation examination) and 130/90 on February 4, 1992 (electrocardiographic record); and • The post-service elevated blood pressure readings recorded in the Veteran’s VA treatment records, to include 142/89 on December 17, 1993, 139/89 on November 28, 1998, 155/90 on May 18, 1999, and 147/82 on March 12, 2001. A complete rationale must be provided for all opinions given. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.