Citation Nr: 21028654 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-36 124 DATE: May 11, 2021 REMANDED Entitlement to dependency and indemnity compensation (DIC) based on service connection for the Veteran's cause of death on the basis of substitution is remanded. REASONS FOR REMAND The Veteran had active service from August 1963 to July 1966. He died in December 2012. The original appellant was the Veteran's surviving spouse. She died during pendency of the appeal and the Veteran's daughter, hereinafter the appellant, is continuing the appeal as her substitute claimant. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In December 2014, the Veteran's surviving spouse and the appellant provided testimony before a Veterans Law Judge at a videoconference hearing. The transcript has been associated with the record. In a March 2015 decision, the Board denied the claim for entitlement to DIC based on service connection for the Veteran's cause of death. The surviving spouse appealed the March 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court vacated the March 2015 Board decision and remanded the issue for further consideration consistent with a Joint Motion for Remand (Joint Motion) filed by counsel for the surviving spouse and the VA Secretary. Thereafter, in September 2015, the Board remanded the case to the AOJ for further development. That development was completed, and the case was returned to the Board for appellate review. In July 2017, the Board denied entitlement to DIC based on service connection for the Veteran's cause of death. The surviving spouse appealed the decision to the Court. In October 2017, the Court vacated the July 2017 Board decision and remanded the issue for further consideration consistent with a Joint Motion for Partial Remand (Joint Motion) filed by counsel for the surviving spouse and the VA Secretary. In October 2018, the Board obtained a Veterans Health Administration (VHA) opinion. Thereafter, in July 2019, the Board again denied entitlement to DIC based on service connection for the Veteran's cause of death. The appellant appealed the decision to the Court. In October 2020, the Court vacated the July 2019 Board decision and remanded the issue for further consideration consistent with a Joint Motion filed by counsel for the appellant and the VA Secretary. 1. Entitlement to DIC is remanded. In the October 2020 Joint Motion, the parties agreed that the Board did not discuss whether the Veteran's service-connected impairments, to include prostate cancer, caused obesity, and whether obesity then served as an intermediate step between the Veteran's service-connected disability and his cause of death in the July 2019 Board decision. In October 2020, the appellant submitted additional arguments in support of her claim. The appellant contended that the Veteran's service-connected disabilities impaired his immune system and increased his risk of health problems, to include causing his obesity, and that the Board failed to address the theory that obesity was an intermediate step between the Veteran's service-connected disabilities and the conditions identified as causing his death. In addition, she asserted that, in the July 2019 Board decision, the Board based its finding that the Veteran did not have coronary artery disease (CAD) on a September 2014 VA medical opinion based on an inaccurate factual premise and disregarded VA treatment and private treatment records that noted CAD. Further, the appellant contended that the October 2018 VHA opinion was inadequate to determine entitlement to service connection for the cause of the Veteran's death. Specifically, she noted that the October 2018 examiner did not adequately address whether the Veteran's service-connected diabetes and prostate cancer aided or lent assistance to the production of his death. The appellant also indicated that the October 2018 examiner did not address relevant medical literature submitted in support of the claim. Finally, the appellant asserted that the October 2018 examiner did not address whether the Veteran's service-connected diabetes caused his hypertension or obstructive sleep apnea, which she contended were related to the congestive heart failure that led or contributed to terminal respiratory failure. The matters are REMANDED for the following action: Refer the claims file to a suitably qualified VA examiner for a clarifying opinion to address the cause of the Veteran's death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and the December 2014 Board hearing transcript. The examiner should note that the Veteran's death certificate indicates respiratory failure, hypoxia, aspiration pneumonia, and congestive heart failure diastolic as the causes of death. The Veteran had a clear and definitive diagnosis of type II diabetes mellitus presumptively associated with Agent Orange exposure from his confirmed service in Vietnam during the Vietnam War. In addition, at the time of the Veteran's death, the Veteran was service connected for prostate cancer and erectile dysfunction. The appellant has contended that the Veteran's death was due to his service-connected prostate cancer and diabetes mellitus. The Veteran's surviving spouse contended that the Veteran's prostate cancer treatment lowered his immune system and increased his risk of health problems, to include causing obesity. The examiner should specifically comment on the medical literature submitted by the appellant in support of the claim. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected prostate cancer and diabetes mellitus caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death' or, aided or lent assistance to his death. In rendering this opinion, the examiner should address the appellant's contention that the Veteran's prostate cancer and/or diabetes mellitus caused or contributed to his eventual development of congestive heart failure. In addition, the examiner should address whether the Veteran's obesity was an intermediate step between his service-connected disabilities and his cause of death. In so doing, the examiner should state whether it is at least as likely as not that the Veteran's service-connected prostate cancer, type II diabetes mellitus, or any combination of service-connected disabilities caused him to become obese or gain weight. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran's cause of death. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Osegueda, Kristyn L. 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.