Citation Nr: 21028215 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-05 588 DATE: May 10, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran had active military service from December 1990 to April 1991, including service in Southwest Asia. Sadly, the Veteran passed away in September 2009. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from the June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2020 and was remanded for further development. The Veteran appeared at a May 2016 hearing before another Veterans Law Judge who is no longer at the Board. In March 2018, the Appellant was sent a letter asking if he requested another optional Board hearing. In April 2018, the Appellant responded that he did not wish to appear at another Board hearing. Therefore, the Board can continue adjudicating this matter. Entitlement to service connection for cause of death is remanded. The Appellant contends that the Veteran's death is related to her military service and service-connected disabilities. The Veteran's death certificate shows that she died in September 2009 and listed her immediate cause of death as adult respiratory distress syndrome. Other significant contributing conditions were severe aspiration pneumonia, recurrent severe hydrocephalus, and coccidiomycotic meningitis. At the time of the Veteran's death, she was service connected for the following: fibromyalgia with chronic fatigue syndrome, evaluated as 40 percent disabling, irritable bowel syndrome, evaluated as 30 percent disabling, chronic acquired variously diagnosed headache disability, evaluated as 30 percent disabling, and cervical spondylosis rated as 10 percent disabling. The Veteran's combined disability rating was 70 percent. It is the Appellant's position that the Veteran's death is related to her military service and that her service-connected disabilities were either the principal cause or at the very least, a contributing cause of her death. The Appellant also argues that the Veteran's coccidiomycosis meningitis and hydrocephalus had its onset in service. Moreover, he asserts that while on active duty, the Veteran may have suffered from brucellosis, a bacterial disease known to be associated with Persian Gulf service. Brucellosis may have resulted in debilitating effects on vital organs and general impairment of the health to an extent that would render the Veteran materially less capable of resisting the effects of the coccidiomycosis meningitis, hydrocephalus aspiration pneumonia, and adult respiratory distress syndrome, ultimately causing her death. The Appellant also contends that the Veteran's other service-connected disabilities such as her fibromyalgia, headaches, IBS, and cervical spondylosis may have also caused her death. In an April 2021 statement, the Appellant argued that the Veteran's service connected headache condition was related to her military service and caused by hydrocephalus, and that the Veteran's hydrocephalus is therefore also related to her military service. As noted above, this matter was previously before the Board in December 2020 and was remanded to comply with the March 2020 United States Court of Veteran Appeals Memorandum Decision that vacated the Board's previous May 2018 decision denying service connection for cause of death. Specifically, in December 2020, the Board directed the Agency of Original Jurisdiction to obtain several new VA medical opinions regarding the Veteran's cause of death. Subsequently, in February 2021, VA opinions were obtained. The examiner provided negative nexus opinions regarding entitlement to service connection for the Veteran's cause of death. However, in the examiner's opinions, the examiner did not take into consideration the Veteran's lay statements that upon returning from Southwest Asia in 1991, she began having symptoms suggestive of brucellosis and infectious disease. The examiner only stated that the presence of cough post service is not a diagnosis and that the Veteran had no pulmonary testing or infectious disease consults performed after her military service. Additionally, the examiner stated that the Veteran's travel to Southwest Arizona is more of a risk to develop respiratory issues, including coccidiomycosis, than her service in Southwest Asia. No other rationales were provided. Additionally, of note, and referenced by the Appellant, the February 2021 examiner stated that "the [Veteran's] headache is NOS and due to normal pressure hydrocephaly more likely and not related to SWA syndrome or CFS." The Board is unsure if this statement is stating that the Veteran's hydrocephaly or headache condition is more likely than not related to the Veteran's Southwest Asia service. Therefore, clarification is needed on remand. Furthermore, the examiner failed to discuss several of the December 2020 remand directives, such as whether the Veteran's coccidiomycosis meningitis was the principal or contributory cause of the Veteran's death. The Board notes that a VA examiner must offer a full rationale for all opinions given and should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. Finally, as a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As the February 2021 examiner did not take into account the Veteran's lay statements, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: 1. Obtain a new VA medical opinion regarding the Veteran's cause of death. The examiner must address the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hydrocephalus is related to the Veteran's military service, to include the Veteran's period of active service in Southwest Asia? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran had a diagnosis of brucellosis is related to the Veteran's military service, to include the Veteran's period of active service in Southwest Asia? c) If the Veteran had brucellosis that had its onset in or is otherwise related to service, is it at least as likely as not (50 percent probability or greater) that this condition was the principal or contributory cause of her death? d) Is it at least as likely as not (50 percent probability or greater) that the Veteran's coccidiomycosis meningitis is related to the Veteran's military service, to include the Veteran's period of active service in Southwest Asia? e) Is it at least as likely as not (50 percent probability or greater) that the Veteran's coccidiomycosis meningitis was the principal or contributory cause of her death? f) Is it at least as likely as not (50 percent probability or greater) that the Veteran's other service-connected disabilities were the principal or contributory cause of death? The examiner must consider the following lay evidence: (1) An August 1997 VA treatment record (received by VA on December 20, 2016), showing that upon the Veteran's return from Southwest Asia in 1991, she began having symptoms suggestive of brucellosis, such as coughing, rash, joint pain, night sweats, and tiredness. (2) The Veteran's son's and the Appellant's May 2016 hearing testimony that the Veteran experienced symptoms severe headaches, depression, a non-productive cough, and neck aches that she was suffering from immediately when she returned overseas. (3) The Appellant's May 2016 statements regarding the onset of the Veteran's symptoms. (4) April 2018 evidence submitted by the Appellant that the Veteran displayed evidence of an infectious disease, brucellosis, during service, and that its long-term effects could have been superimposed or existed alongside coccidioidomycosis meningitis. (5) Chest x-rays taken in January and February 2001 showing a linear left basal density, probably subsegmental atelectasis or fibrosis, and linear scarring of the left lung base. (6) Medical articles (from the Mayo Clinic titled 'Valley Fever' and from Healthline titled 'Tyles of Valley Fever') submitted by the Appellant and received by VA in December 2016, which addressed the fact that coccidioidomycosis cannot be distinguished from other lung disabilities on x-rays and that x-rays rarely demonstrate nodules or cavities in the lungs, that coccidioidomycosis can lay dormant for 20 years or more after the initial illness and that lung scarring may be a factor indicative of its presence 2. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.