Citation Nr: 21024484 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-17 995A DATE: April 22, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND Service Connection for the Cause of the Veteran’s Death is Remanded. The Veteran served on active duty from July 1968 to July 1970, and from October 1970 to May 1971. The Veteran died in June 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant is the Veteran’s surviving spouse. The Appellant initially requested a hearing before the Board in the July 2012 substantive appeal; however, in March 2020, the Appellant’s representative asked the Board to withdraw the request for a hearing and proceed with adjudication based on the evidence of record. See 38 C.F.R. § 20.704(e). This case was before the Board in August 2009. The Board denied service connection for the cause of the Veteran’s death. The Board noted that the Veteran died of metastatic squamous cell carcinoma originating in the mouth and spreading to the lymph nodes, lungs, and spine. The Board found that the squamous cell carcinoma was not etiologically related to service or to Agent Orange exposure, which the Veteran was presumptively exposed to under 38 C.F.R. § 3.307(a)(6). The Board also found that the service-connected disabilities were not an immediate or underlying cause of the Veteran’s death and did not contribute substantially or materially to cause his death. In October 2009, the August 2009 Board Decision was returned as undeliverable. This note was submitted to the record with a handwritten note on the document stating that “CADD 10/21/09 mailed to correct address.” In September 2010, the Appellant filed what was indicated to be a claim to reopen service connection for the cause of the Veteran’s death. Service connection for the cause of the Veteran’s death was denied in a November 2010 rating decision. A notice of disagreement was filed in February 2011, a statement of the case was issued in May 2012, and the Appellant filed a substantive appeal in July 2012. This case was most recently before the Board in July 2020. In the July 2020 Board Decision, the Board found that the presumption of regularity was rebutted when the August 2009 Board Decision was returned as undeliverable. While the August 2009 Board Decision was returned as undeliverable, the Board found that the note was evidence that the Appellant received notice of the August 2009 Board Decision and, as a result, the August 2009 Board Decision became final. The Board then found that there was no new and material evidence of record to reopen the claim and issued a denial. The Appellant appealed the July 2020 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC).       A January 2021 Order by CAVC adopted a Joint Motion for Remand (JMR) filed by the parties. The parties agreed that the Board did not provide adequate reasons and bases for its determination that the Appellant received the August 2009 Board Decision. In its July 2020 Decision, the Board noted that the record showed the 2009 Board decision was subsequently sent to the correct address, and that there was no indication a subsequent Board decision was returned as undeliverable; however, the parties agreed in the JMR that the Board did not discuss how the handwritten notation demonstrated that the remailing procedure was followed. In the instant Board remand, the Board finds that there is a question as to whether the Appellant received the August 2009 Board Decision prior to the September 2010 claim to reopen. For this reason, the Board now finds that the August 2009 Board Decision is not final. The Veteran died in June 2002 of metastatic squamous cell carcinoma originating in the mouth and spreading to the lymph nodes, lungs, and spine. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) rated at 70 percent; keratoderma, dyshidrotic eczema on both feet rated at 10 percent; and dyshidrotic eczema, podopompholyx, palmoplantar pustulosis on both hands rated at 10 percent. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it 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. 38 C.F.R. § 3.312(c)(1). To establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. 38 C.F.R. § 3.303 (a),(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.321(c)(2). The Appellant submitted private treatment records in January 2021. The private examiner, a clinical psychologist, reviewed the documents of record and opined that the Veteran drank alcohol excessively and smoked excessively as a means of attempting to cope with the service-connected PTSD. The private examiner noted that, while he is not an oncologist, he “reviewed the March 2009 VA examination and generally accepted the oncology literature and based on the same, the late Veteran’s service-connected PTSD and anxiety caused his excessive alcohol and tobacco use, which more likely than not caused his fatal mouth cancer.” A remand is warranted to obtain a VA examination addendum opinion to help determine whether the excessive smoking and alcohol consumption associated with the service-connected PTSD substantially or materially contributed to the Veteran’s cause of death (metastatic squamous cell carcinoma in the mouth). This matter is REMANDED for the following action: Obtain a VA addendum opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should specifically address the private opinion in the January 2021 private treatment records. The VA examiner should offer the final opinion: Is it least as likely as not that the excessive smoking and/or alcohol consumption associated with the service-connected PTSD substantially or materially contributed to the Veteran’s cause of death of metastatic squamous cell carcinoma in the mouth? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.