Citation Nr: 21024641 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-17 431 DATE: April 23, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death, to include entitlement to benefits pursuant to 38 U.S.C. § 1151 for additional disability as result of VA medical treatment, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1958 to December 1962 and from January 1965 to November 1967. The Veteran died in December 2010. The Appellant seeks surviving spouse benefits. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2015, September 2017, and February 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for the cause of the Veteran’s death, to include entitlement to benefits pursuant to 38 U.S.C. § 1151 for additional disability as result of VA medical treatment, is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to service connection for the cause of death. In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service either caused or contributed substantially or materially to the Veteran’s demise. 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 to the cause of death. For a service-connected disability to constitute a contributory cause 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. Service-connected diseases or injuries involving active processes affecting vital organs should 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.  38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Appellant asserts that the Veteran’s severe heart disease, which contributed to his death, is etiologically related to active service, to include as due to herbicide agent exposure, or was aggravated by service-connected posttraumatic stress disorder (PTSD). In the alternative, the Appellant also asserts that the Veteran acquired hepatitis C as result of VA medical treatment in November 2000 for a coronary artery bypass graft (CABG), which in turn, led to the development of end-stage cirrhosis, which ultimately resulted in death. At the time of death, the Veteran had established service connection for PTSD only. The December 2010 death certificate states that the Veteran’s immediate causes of death were sepsis and clostridium difficile colitis with end stage cirrhosis and severe cardiomyopathy also contributing. As an initial matter, the Board notes that, to date, VA has been unable to confirm that the Veteran had service in the Republic of Vietnam during active duty service. The evidence of record does not otherwise corroborate any exposure to herbicide agents during service. Therefore, entitlement to service connection for the Veteran’s cause of death on the basis of presumptive service connection based on herbicide agent exposure cannot be established. The Board also notes that VA medical opinions from December 2016 and October 2018 have been found by the Board in previous decisions to be inadequate. Thus, they will not be considered in adjudication of this claim. In February 2019, the Board remanded this matter for additional development. The Board sought a medical opinion to determine the etiology of hepatitis C. In a March 2019 opinion, an examiner stated that it was less likely as not (less than 50 percent or better probability) that the Veteran acquired hepatitis C as result of a November 2000 CABG surgery and hospitalization, including any suggestion of being put on dialysis in ICU immediately following surgery, at VA medical center in Richmond, Virginia. The examiner reasoned that the Veteran's hepatitis C was not the result of dialysis in November 2000. The intra-operative surgical notes, post-operative surgical report, ICU progress notes, and discharge summery were all silent for any discussion of dialysis. Records were silent for a consult by nephrology regarding the need for or management recommendations. While dialysis patients are at higher risk for developing HCV, that risk is predicated on a major study bias, the great preponderance data is based on studies of long-term maintenance patients. The examiner cited to a study showing a paucity of statistical data supporting risk in patients that are not. When asked to comment on the likely cause of the Veteran’s hepatitis C. The March 2019 examiner, in an effort to avoid redundancy, asked that the requesting rater please refer to October 2018 VA medical opinion. The March 2019 examiner also stated that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment or post-operative care of the Veteran and that it is less likely as not that hepatitis C was due to an event not reasonably foreseeable, such as dialysis treatment. The examiner explained that the preponderance of medical evidence in the records did not support dialysis as a risk. The Board finds the March 2019 VA medical opinion to be incomplete. In providing the rationale for the opinion, the examiner referred to an October 2018 VA medical opinion which was previously found to be incomplete by the Board in a February 2019 decision. Therefore, the October 2018 medical opinion cannot serve as sufficient basis for any subsequent medical opinion. Further, even if the Board were to find the March 2019 VA opinion to be satisfactory, which it does not, the Board notes that, as the record currently stands, there is no adequate medical opinion concerning the Veteran’s cause of death and service-connected PTSD. Accordingly, because the Veteran’s death may have been caused by service or a service-connected disability, the Board finds that a VA opinion to determine any relationship between the Veteran’s death and service should be ordered. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Appellant’s claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records not already of record. 2. Obtain a VA medical opinion, from an examiner who has not previously provided an opinion, to assist in determining the etiology of the Veteran’s hepatitis C, and any relationship to VA treatment. The examiner must review the record, including this Remand, the Board’s February 2019 Remand, the Board’s September 2017 Remand, the Board’s September 2015 Remand, and VA clinical documentation dated March 2001 establishing the diagnosis of and treatment for hepatitis C, and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran developed hepatitis C as a result of VA treatment, to include November 2000 CABG surgery and/or subsequent treatment? (b) is it at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis C was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment to the Veteran? (c) Is it at least as likely as not (50 percent or greater probability) that the hepatitis C disability was the result of an event not reasonably foreseeable? The examiner must discuss the significance of the evidence showing the Veteran testing negative for hepatitis in September 2000, undergoing CABG surgery in November 2000 and, apparently, being diagnosed with Hepatitis C in March 2001. Whether the proximate cause of any additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. In efforts to resolve this claim, the Board further asks the examiner to discuss the likelihood that someone would contract hepatitis C via CABG surgery or during a blood transfusion. 3. Obtain a VA medical opinion, from an examiner who has not previously rendered an opinion, with regard to the disabilities which caused or contributed to the Veteran’s death, to include sepsis, clostridium difficile colitis, end stage cirrhosis, and severe cardiomyopathy. The examiner must review all pertinent records associated with the claims file, including this Remand, and the previous Board Remands, and indicate review of the file in the examination report. The examiner should address the Appellant’s lay statements regarding the Veteran’s cause of death and service. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s causes of death, to include sepsis, clostridium difficile colitis, end stage cirrhosis, and severe cardiomyopathy, were due to, related to, caused by, or aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected PTSD and treatment for PTSD. The examiner is specifically asked to address the contention set forth that a service-connected psychiatric disability and its treatment caused or aggravated the Veteran’s cardiovascular disabilities, which in turn resulted in the Veteran’s death. The examiner is further asked to opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran’s causes of death, to include sepsis, clostridium difficile colitis, end stage cirrhosis, and severe cardiomyopathy, are due to, related to, caused by, or aggravated (increased in severity beyond the natural progress of the disorder) by hepatitis C. A clearly stated rationale for each opinion offered should be provided and must not be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.