Citation Nr: 21023072 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-42 816A DATE: April 20, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1971. He was awarded the Purple Heart. Unfortunately, he died in January 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO). An August 2019 decision by the Board denied these claims. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s August 2019 decision and remanded the claim to the Board for additional development and readjudication. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The December 2020 Court Order remanded the claims for development consistent with the terms of the JMR. Specifically, the JMR deemed that the Board did not fulfill its duty to assist when it failed to obtain VA treatment records from the Las Vegas VA Medical Center prior to June 2012. Additionally, the JMR deemed that the Board failed its duty to assist by not notifying the appellant that VA was unable to obtain those records. The Board notes that a request to VA’s Southern Nevada Healthcare System for the Veteran’s VA treatment records prior to June 2012 received a negative response. However, there is no indication that the appellant was notified of the unavailability of those records. Therefore, on remand, the appellant must be provided appropriate notice. Further, on her VA Form 21-534EZ the appellant reported that the Veteran was treated at the VA medical facility in Loma Linda, California, from May 1971 to April 1993. These records should be obtained on remand. The appellant asserts that the Veteran’s death was related to his conceded in-service herbicide exposure. The Veteran’s death certificate lists his cause of death as congestive heart failure (CHF) due to chronic obstructive pulmonary disease (COPD). The Board notes that a December 30, 2014 chest x-ray from Sunrise Hospital showed that the Veteran had atherosclerotic vascular calcifications. ASCVD is recognized as a presumptive condition due to herbicide exposure under 38 C.F.R. § 3.309(e). Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). On remand, medical opinions should be obtained as to whether the Veteran’s atherosclerotic cardiovascular disease caused or contributed to his death, and whether his COPD was caused by his in-service herbicide exposure 2. Entitlement to burial benefits is remanded. As the appellant’s claim for burial benefits is intertwined with the cause of death claim, it must also be remanded at this time. 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. Notify the appellant that a request for the Veteran’s VA treatment records dated from January 2000 to June 2012 made to VA’s Southern Nevada Healthcare System received a negative response. The appellant should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Make arrangements to obtain the Veteran’s complete VA treatment records from the VA medical facility in Loma Linda, California, dated from May 1971 to April 1993. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, refer the claims file to an appropriate VA clinician for the following opinions: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s COPD was caused by his in-service exposure to herbicide agents? (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s atherosclerotic cardiovascular disease: i. Caused his death; ii. Contributed substantially or materially to his death; iii. Combined to cause his death; or iv. Aided or lent assistance to the production of his death. v. Resulted in debilitating effects and general impairment of health to the extent that rendered the Veteran less capable of resisting the effects of either disease or injury primarily causing death. vi. Was of such severity as to have a material influence in accelerating death. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s atherosclerotic cardiovascular disease either (i) caused, or (ii) aggravated his fatal congestive heart failure? The examiner is advised that aggravation may include temporary worsening of a disability. A complete rationale must accompany all opinions rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Stedman, Michael 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.