Citation Nr: 21040834 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-23 211 DATE: July 7, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1986 to April 1994. The Veteran died in March 2013, and the appellant has filed this claim as the surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 Department of Veterans Affairs (VA) rating decision. In September 2019, the Board remanded the case to the Regional Office (RO) for additional development, to include acquiring an expert opinion as to whether the cause of death was related to the Veteran's service. After obtaining an opinion pursuant to the September 2019 remand, the Board denied the Veteran's claim in March 2020. In February 2021, the appellant and the Secretary of VA (the parties) entered a Joint Motion for Remand (Joint Motion) relating to the March 2020 Board denial, which was then granted by the United States Court of Appeals for Veterans Claims. In the Joint Motion, the parties agreed that vacating the March 2020 decision and remanding the within issue was necessary because the Board erred in relying on an inadequate VA opinion. Specifically, the parties found that the Board relied on an inadequate opinion because the examiner was under the misimpression that the Veteran did not have a respiratory condition despite the fact the autopsy report clearly denotes emphysema. The parties found this error was prejudicial because the examiner remarked that pulmonary disease may have had an indirect impact on death, an inquiry relevant under 38 C.F.R. § 3.312(c)(3)-(4), but the examiner then concluded that respiratory impairment was not the cause of the death and that there are no records to indicate whether pulmonary/respiratory was a direct or indirect cause of the death. Additionally, the examiner did not address some of the evidence included in the Board's September 2019 remand instructions, such as evidence of fatigue, being winded, and passing out. Finally, the parties stated that the examiner failed to address the incidence of loss of consciousness and syncope in service, and whether that evidence may have been related to a heart disability that remained undiagnosed or misdiagnosed in service, a theory of service connection expressly raised by the appellant. The parties stated that remand is warranted to obtain a clarifying medical opinion. Accordingly, remand is necessary for development consistent with the Joint Motion. The matter is REMANDED for the following action: 1. Refer the claims file to the physician that provided the December 2019 VA medical opinion to provide an addendum opinion as to whether the Veteran's cause of death was at least as likely as not related to active service, to include his exposure to asbestos or smoke from oil fires in the Persian Gulf. If the physician who provided the December 2019 medical opinion is unavailable, then have another qualifying medical professional review the file to provide an addendum opinion. The examiner should review the file and be provided with a copy of the facts below. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran served on active duty from July 1986 to April 1994, including service in the Persian Gulf. He died in March 2013. The appellant claims that the cause of the Veteran's death was related to either symptoms the Veteran experienced in service and/or exposures the Veteran experienced during service. In May 1987, the Veteran was treated for heat exhaustion due to high heat and no food. The Veteran stated that he felt dizzy and did not know if he had passed out. See VBMS entry with document type, "STR Medical," receipt date 05/05/2019, p. 8. In January 1993, the Veteran was treated at the emergency room with complaints of syncope after he had lost consciousness twice and sustained a contusion to the back of the head. He was assessed with vasovagal syncope. See VBMS entry with document type, "STR Medical," receipt date 05/05/2019, pp. 15-17. The March 1994 Report of Medical Examination performed at separation shows he received normal clinical evaluations of the lungs and chest, heart, vascular system, and neurological system. See VBMS entry with document type, "STR Medical," receipt date 05/05/2019, pp. 23-24 (items 28, 29, 30 & 41) (pages are reversed). Within the March 1994 Report of Medical History, the Veteran denied a history of dizziness or fainting spells, shortness of breath, pain or pressure in chest, chronic cough, palpitation or pounding heart, heart trouble, and periods of unconsciousness. See VBMS entry with document type, "STR Medical," receipt date 05/05/2019, p. 22 (item 11). In 2003, the Veteran submitted a lay statement wherein he asserted that he was exposed to asbestos-lined steam pipes and worked closely with asbestos as a boiler technician while serving on the USS Lawrence. He stated that he lost consciousness performing his boiler technician duties during service. He additionally indicated that after service, he experienced irritation of the lungs. See VBMS entry with document type, "VA 21-4138 Statement in Support of Claim," receipt date 04/07/2003, with "#1" in the subject field, p. 1. The Veteran's death certificate shows he died in March 2013 and lists the causes of death as cardiac tamponade due to or as a consequence of hemopericardium due to or as a consequence of ascending aorta aneurysm rupture. See VBMS entry with document type, "Death Certificate," receipt date 01/16/2018, p. 1. A December 2013 autopsy report shows the examiner noted that there was no known chronic medical history or medical care within the previous 13 years. The cause of death was again listed as cardiac tamponade due to hemopericardium due to rupture of ascending aortic aneurysm. Relevant anatomic diagnoses of the heart included the narrowing of various coronary arteries; cardiomegaly; left ventricular hypertrophy; ascending aorta that has dissected and ruptured; and descending aorta with mild to moderate calcification and no aneurysmal changes. Relevant anatomic diagnoses of the lungs included moderate to severe acute pulmonary congestion and edema; centrilobular emphysema; partial obstruction of upper airway and trachea by bloody edema fluid and mucoid exudates; and total obstruction of bronchi and terminal airways by bloody edema fluid and mucoid exudates. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 01/16/2018, pp. 1-3. Clinical findings of internal examinations of the respiratory system and cardiovascular system are also laid out in the December 2012 autopsy report. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 01/16/2018, pp. 5-6. In a January 2018 statement, the appellant stated that the Veteran passed away from a condition that could have begun while in military service. She stated that there is indication that the Veteran passed out numerous times while aboard ship. She stated that he was exposed to oil well fires in Kuwait, and, thereafter, he experienced symptoms of fatigue, cardiovascular disease, muscle and joint pain, headache, respiratory disorders, and sleep disturbances. See VBMS entry with document type, "VA 21-4138 Statement in Support of Claim," receipt date 01/16/2018, p. 1. In a December 2019 medical opinion, a VA examiner determined that it was less likely than not that the Veteran's death was related to service. The examiner explained that the Veteran's death was cardiac in nature and not due to lung disease. The examiner wrote the direct cause of death was the ruptured aortic aneurysm, but noted that pulmonary disease "may or may not have had an indirect impact on death" but that no records were submitted showing if the Veteran, in fact, was diagnosed or treated for a respiratory disorder. See VBMS entry with document type, "C&P Exam," receipt date 12/19/2019, pp.1-2. The December 2019 medical opinion did not acknowledge that the autopsy report documented the Veteran had emphysema, which is a pulmonary disease. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. After a review of the file, the examiner is asked to answer the following questions based upon the evidence of record and sound medical principles: a) Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's documented incidence of loss of consciousness and/or syncope in service were related to a heart disability that remained undiagnosed or misdiagnosed in service? Please state upon what facts, medical principles, and/or medical literature support the opinion. b) If the answer to a) is negative, is it at least as likely as not (50 percent or greater likelihood) that the Veteran's diagnosis of emphysema was incurred in or caused by the Veteran's military service, to include exposure to asbestos and/or oil fires? Please state upon what facts, medical principles, and/or medical literature support the opinion. c) If the answer to b) is positive, is it at least as likely as not (50 percent for greater likelihood) that the Veteran's diagnosis of emphysema contributed to the Veteran's death? The examiner is informed that a contributory cause of death is inherently one not related to the principal cause. In determining whether the disability (here, emphysema) 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. Please state upon what facts, medical principles, and/or medical literature support the opinion. A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. In your rationale, please address the significance of the findings of syncope and unconsciousness during service, as well as the post-service symptoms reported by the Veteran and the appellant. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.