Citation Nr: 21024770 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-46 478 DATE: April 26, 2021 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army October 1967 to October 1969, including service in the Republic of Vietnam. He died in October 2006. The appellant is the Veteran’s surviving spouse. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied the appellant’s claim. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) and, in an October 2019 order, the Court granted the Joint Motion, vacating the Board’s December 2018 decision and remanding the matter for compliance with the Joint Motion. In April 2020 and again in August 2020, the Board remanded the appellant’s claim. In October 2020, the appellant, via her representative, requested a personal hearing before the Board. In October 2020, the appellant, via her representative, withdrew her request for a Board hearing. As such, the appellant’s hearing request is withdrawn. 38 C.F.R. § 20.704(e). Entitlement to service connection for the cause of the Veteran’s death is remanded. To ensure that VA has met its duty to assist, remand for a supplemental medical opinion is necessary to decide this appeal. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)(4). The appellant contends that, during the Veteran’s lifetime, he talked about his daily battle with severe pain and poor circulation, and he believed that the left-over fragments from his combat wounds would contribute to his death. See VA 21-4138 (February 2016). She also contends that the retained fragments migrated to the brain and other parts of the body, and they became a major contributing factor to the Veteran’s brain disease and death. See Form 9 (September 2016). Via her representative, the appellant has also asserted that (1) the Veteran’s MDS resulted from his herbicide agent exposure and caused or substantially contributed to his death, and (2) the Veteran’s diabetes or any other service-connected disability caused or substantially contributed to his death. See Third Party Correspondence (June 2020). The appellant provided additional statements from the Veteran’s friends, also other veterans, who reported that the Veteran had complained of severe chronic pain, headaches, stomach cramps and residuals of retained fragment wounds. See VA 21-4138 (September 2016). 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 was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1).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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). 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. Mogan v. Nicholson, 21 Vet. App. 413 (2006) (quoting 38 C.F.R. § 3.312(c)(3)). Turning to the facts, the Veteran’s death certificate from October 2006 listed his immediate cause of death as respiratory failure, septic shock, and mycobacterium kasai. See Death Certificate (August 2014). Anoxic encephalopathy was also listed as a significant condition contributing to his death. Id. At the time of his death, the Veteran was service connected for tinea cruris, tinea pedis, retained metallic foreign body of the abdominal wall at the level of L3, lumbosacral strain, and fragment wounds scars of the right shoulder, neck, and left thigh. Although the Veteran’s exposure to herbicide agents has been conceded by VA and there is competent, credible evidence of MDS and diabetes in his lifetime, the Veteran had not requested service connection for either MDS or diabetes during his lifetime. It is noted that, diabetes mellitus, type II, is a disease presumptively associated with exposure to certain herbicide. 38 U.S.C. § 1116(H); 38 C.F.R. §§ 3.307, 3.309(e). Stated differently, as diabetes mellitus is presumed service connected in veterans exposed to herbicide agents, and the Veteran is presumed to have been exposed to herbicide agents, his diabetes is presumed to be related to service. The questions for the Board are therefore: (1) whether the Veteran’s MDS was at least as likely as not related to in-service herbicide agent exposure, and if so, whether the MDS at least as likely as not caused or substantially contributed to the Veteran’s death, (2) whether it is at least as likely as not that the Veteran’s diabetes, which is presumably related to his herbicide exposure, was the principal or contributory cause of death, and (3) whether it is at least as likely as not that the any other service-connected disability caused or substantially contributed to his death. 38 C.F.R. § 3.312(a). Private hospital records associated with time period preceding the Veteran’s death reflects that, in September 2006, the Veteran was hospitalized with history of MDS noted as having been diagnosed several years earlier and having undergone chemotherapy after which he developed persistent fever, wasting, weight loss, severe cachexia, poor appetite and general lethargy and decreased energy. See Medical Treatment Record - Non-Government Facility (August 2014). It was noted that, at an outside hospital in June 2006, he was found to have what was described as parapancreatic or perihepatic mass, and in July 2006 he received five days of azacytidine. Id. A September 2006 record from an attending physician notes the Veteran’s exposure to Agent Orange and that it is “known to be associated with MDS and leukemia.” Id. Private treatment notes from the day the Veteran passed, October 7, 2006, note diagnoses of mycobacterium kasai, respiratory failure, cardiac arrest, anoxic encephalopathy and MDS. Id. For reasons discussed below, the Board finds that remand is warranted. First, the medical record is incomplete. Although the appellant provided private treatment records from MedStar Health and Washington Hospital Center from the Veteran’s treatment in September and October 2006, these records refer to additional treatment including in June and July 2006 at Doctors Community Hospital and Georgetown University Hospital. See Medical Treatment Record - Non-Government Facility (August 2014). However, these records have not been associated with the Veteran’s file. The record does not reflect that efforts were made to assist the appellant in obtaining records from Doctors Community Hospital and Georgetown University Hospital for the treatment the Veteran received immediately prior to his death in October 2006. When reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the appellant in attempting to obtain them. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, the available medical evidence of record is inadequate to decide the appeal, and there has not been substantial compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously found that a May 2020 VA medical opinion was inadequate, because the opinion (1) found no association between MDS and herbicide exposure based on one study, 2012 Veterans and Agent Orange, (2) in providing a negative etiological opinion in regard to diabetes, failed to state particular facts and medical science used to reach the conclusion, and (3) failed to consider whether any of the Veteran’s service-connected disabilities prior to death were the principal cause or substantially contributed to the Veteran’s death. That VA medical opinion, however, also found that MDS substantially contributed to Veteran’s death as MDS significantly increases the risk of infections, and as a result mycobacterium kansasii was a contributing infectious cause of his death. See C&P Exam (May 2020). The September 2020 VA medical opinion obtained on remand does not answer the questions posed by the Board in its August 2020 remand. See Stegall, supra. In assessing the probative weight given to a medical opinion, the Board must consider whether it is based on sufficient facts or data; the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); see also Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (although all medical opinions constitute medical conclusions that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner’s opinion). First, the medical opinion is inadequate because there is insufficient rationale in concluding that the Veteran’s MDS is not related to service to include exposures during service. The medical opinion, in this case, made no attempt to explain why the Veteran’s MDS was not caused by his service and did not indicate review or address the specific contentions as to the causes of his MDS. Second, the medical opinion findings were based on the absence of findings of MDS at separation. Specifically, to the question of whether it is at least as likely as not that MDS was manifested during or is otherwise related to the Veteran’s period of active service, the examiner found that MDS was less likely than not incurred in or related to service based on a September 1969 separation physical with no evidence or symptoms suggestive of MDS. See C&P Exam (September 2020). However, the absence of a MDS diagnosis in the Veteran’s service treatment records cannot be the sole reason for providing an unfavorable medical opinion. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Third, the opinion provided the same rationale as the May 2020 VA medical opinion, despite the Board’s previous finding that such were inadequate, including direct recitation of the discussion of 2012 Veterans and Agent Orange study. In response to the question of whether the Veteran’s diabetes caused or substantially contributed to his death, the September 2020 examiner provided the same conclusory statement as the May 2020 VA examiner without providing any particular facts and medical science used to reach the conclusion. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). In response to the question of whether any of the Veteran’s service-connected disabilities prior to his death caused or substantially contributed to his death, the August 2020 VA medical opinion provided no answer, instead only listing the service-connected disabilities. See Stegall, supra. Additionally, the opinion does not reveal a finding or rationale of whether the Veteran’s service-connected disabilities, to include diabetes that is presumed to have been due to exposure to herbicides, were/was of such severity that it involved processes affecting vital organs and, if so, whether it resulted in debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Further, the opinion does not reflect a finding or rationale supporting a finding of whether the Veteran’s service-connected disabilities, diabetes and MDS, if found to have resulted from service or in-service herbicide exposure, was/were of such severity as to have a material influence in accelerating death. See 38 C.F.R. § 3.312(c)(4). As mentioned above, the appellant argues that the Veteran’s service-connected disabilities had a material influence in accelerating death and in support of this argument she submitted testimony and written statements from herself as well as the Veteran’s friends detailing their observations on the Veteran’s physical changes prior to his death. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). Given this, coupled with absence of any discernable analysis, the September 2020 VA medical opinion is inadequate. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record). Therefore, remand is necessary for an addendum medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lastly, the Board has considered whether the favorable January 2021 private medical opinion is sufficient to grant the benefit sought on appeal. Unfortunately, it is not. The opinion provides that it is at least as likely as not that the Veteran’s “MDS is at least as likely as not secondary to his exposure to Agent Orange.” The opinion also provides that “in this case, the etiology of MDS is unknown, environmental factors may be relevant since MDS has been linked in several patients to petrochemicals such as benzene.” Id. Because of the use of the term “may be” and “unknown,” the rational is speculative in nature and lacks the requisite degree of certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term “could,” “may,” or “possibly,” without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). Also, the opinion, while appearing to support the theory that MDS was a due to Agent Orange exposure, does not fully explain what role, if any, it played in the contributing to the cause of death. See 38 C.F.R. § 3.312(c) (“It is not sufficient to show that it causally shared in production of death, but rather it must be shown that there was actual causation.”). Here, the opinion does not reflect clear conclusions with supporting data along with a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for non-VA medical records relevant to the diseases she believes caused or contributed to the Veteran’s death to include Doctors Community Hospital and Georgetown University Hospital. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. All attempts to obtain these records must be documented in the claims file; and the appellant must be notified if requested records are not obtained. 2. Thereafter, obtain an addendum opinion from a physician to address the Veteran’s cause of death. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The medical opinion should, among other things, include a discussion of (i) the Veteran’s documented history and the appellant’s assertions, and (ii) the lay and medical evidence submitted by the appellant, to include the January 2021 private medical opinion. The examiner should respond to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that MDS was manifested during or is otherwise related to the Veteran’s period of active service. The examiner should also address whether MDS was related to in-service herbicide exposure considering the September 4, 2006, hospital record noting the Veteran’s Agent Orange exposure in Vietnam was known to be associated with MDS and the January 2021 private medical opinion suggesting that MDS is “secondary” to Agent Orange exposure. Principal Cause of Death (b.) Whether the Veteran’s (1) MDS, only if determined to be at least as likely as not manifested during or otherwise related to the Veteran’s active service, to include exposure to herbicide agent, (2) diabetes and/or (3) any of his service-connected disabilities singly or jointly with some other condition, at least as likely as not was/were the immediate or underlying cause of the Veteran’s death or is/are otherwise etiologically related thereto. Explain. Contributory Cause of Death (c.) Whether the Veteran’s (1) MDS, only if determined to be at least as likely as not manifested during or otherwise related to the Veteran’s active service, to include exposure to herbicide agent, (2) diabetes and/or (3) any of his service-connected disabilities at least as likely as not: i. Contributed substantially or materially to his death; ii. Combined to cause his death; or iii. Aided or lent assistance to the production of his death. Explain. [Note: 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. See 38 C.F.R. § 3.312(c)(1).] (d.) Whether the Veteran’s (1) MDS, only if determined to be at least as likely as not manifested during or otherwise related to the Veteran’s active service, to include exposure to herbicide agent, (2) diabetes and/or (3) any of his service-connected disabilities at least as likely as not resulted in debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. Explain. (e.) Whether the Veteran’s (1) MDS, only if determined to be at least as likely as not manifested during or otherwise related to the Veteran’s active service, to include exposure to herbicide agent, (2) diabetes and/or (3) any of his service-connected disabilities at least as likely as not was of such severity as to have a material influence in accelerating death. Explain. [Note: The physician must consider that it would not generally be reasonable to hold that a condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature.] 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.