Citation Nr: 21041058 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 11-24 904 DATE: July 8, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death, to include compensation pursuant to 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to December 1973. He died in February 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, inter alia, denied service connection for the cause of the Veteran's death. In December 2015, the appellant testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The appellant was notified by letters in November 2019 and November 2020 that the VLJ who conducted the December 2015 hearing was no longer employed by the Board and thus was offered the opportunity to have another hearing before a member of the Board. In response, the appellant submitted a written statement in lieu of requesting another Board hearing. Therefore, the Board proceeds with the case without an additional Board hearing. In February 2016, the Board remanded the issues of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 and to service connection for the cause of the Veteran's death, to include compensation pursuant to 38 U.S.C. § 1151, for additional evidentiary development. The case was returned to the Board for appellate review, and in February 2020 the Board decided the issue of entitlement to DIC under 38 U.S.C. § 1318 on the merits and remanded the remaining issue on appeal for additional evidentiary development. This matter was most recently before the Board in March 2021. At that time, the Board again remanded the claim for further evidentiary development, to include an addendum medical opinion. Entitlement to service connection for the cause of the Veteran's death, to include compensation pursuant to 38 U.S.C. § 1151, is remanded. The appellant contends that the Veteran's respiratory failure was due to his conceded exposure to herbicide agents. She asserts that he smoked since service and had breathing trouble shortly after service. She also contends that the Veteran's service-connected posttraumatic stress disorder (PTSD) caused him a good deal of stress and prevented him from sleeping. The Veteran's February 2008 certificate of death indicates that the immediate cause of his death was respiratory failure. The contributory causes of death were intra-abdominal sepsis, bowel perforation during complicated colonoscopy, and Crohn's disease. Pursuant to the Board's March 2021 remand instructions, a VA addendum medical opinion was obtained in April 2021. The examiner opined in pertinent part, Review of the records did not show/confirm condition that is related to herbicide exposure (Agent Orange). [V]eteran is diagnosed with PTSD which [is] not related to or resulted from herbicide exposure (Agent Orange). Private and VA treatment records show assessments and treatment for bronchitis and COPD as early as April 1992 which are likewise not due to Agent Orange exposure. [I]n my opinion it is related to history of 15 years cigarette smoking. The Veteran's death certificate lists his immediate cause of death as respiratory failure due to (or a consequence of) intra-abdominal sepsis due to (or a consequence of) bowel perforation during complicated colonoscopy due to (or a consequence of) Crohn's disease. It is less likely than not that (50 percent or more probability) that the Veteran's fatal respiratory failure had its origin in service or is related to an incident of service, to include herbicide exposure. The Veteran's service-connected disabilities at the time of his death included PTSD, hearing loss, tinnitus, and residuals of left clavicle and right hand fractures will not cause debilitating effects and general impairment of his health to an extent that it rendered him physically less capable of resisting the effects of the sepsis due to intestinal perforation which was caused by existing Crohn's disease. Intestinal contents will seep into the abdominal cavity that will result to infection, if untreated will result to sepsis that caused his death. Therefore it is less likely than not that the Veteran's service-connected disabilities and/or the medications taken for the service connected disabilities contributed substantially or materially to cause his death, combined to cause his death, or aided or lent assistance to the production of his death. The reported observations of the Veteran's breathing trouble shortly after service was due to COPD which is a pulmonary condition that is a result of underlying chronic pulmonary disease. PTSD is a [sic] related of traumatic experience in the performance of the Veteran's duty during service. There is no indication or medical evidence that support that claimed observations of the Veteran's breathing trouble shortly after service and PTSD was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing care, medical or surgical treatment, or examination. Sepsis was due to intestinal perforation which was caused by existing Crohn's disease. Intestinal contents will seep into the abdominal cavity that will result to infection, if untreated will result to sepsis that eventually caused his death. Consent forms were signed and Veteran was informed about possible complications. The procedures and treatment performed were per guidelines and proper protocols were followed. The perforation was not due to the procedure but it was noted during colonoscopy. Though perforation is a known complication of such procedure, it is less likely that the claimed complications [were] due to procedure and death could have been foreseen by a reasonable health care provider and it could be avoided. Regarding whether the Veteran's service-connected PTSD caused or aggravated his Crohn's disease, the examiner opined in pertinent part: No records are found that will confirm that PTSD caused or aggravated his Crohn's disease. PTSD a mental condition does not have causal relationship with Crohn's disease which is a digestive inflammatory condition. The Board finds that the medical opinion is inadequate. In that regard, the opinion is conclusory in nature and fails to adequately address the questions posed in the March 2021 remand. In addition, the Board finds that the examiner's rationale regarding aggravation is inadequate, as he appears to conflate secondary causation with aggravation. While the Board greatly regrets further delay, remand is required for an additional medical opinion for full compliance with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the Veteran's cause of death. Access to the Veteran's electronic claims file must be made available to the examiner for review in connection with the opinion. Th examiner is advised of the following: The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides during his period of active service from January 1966 to December 1973. The Veteran's death certificate lists his immediate cause of death as respiratory failure due to (or a consequence of) intra-abdominal sepsis due to (or a consequence of) bowel perforation during complicated colonoscopy due to (or a consequence of) Crohn's disease. At the December 2015 Board hearing, the appellant reported her observations of the Veteran's breathing trouble shortly after service and PTSD caused him a good deal of stress and prevented him from sleeping. Review of private and VA treatment records shows assessments and treatment for bronchitis and COPD as early as April 1992. After reviewing the record, the examiner must provide the following opinions, with supporting rationale, as to the following: (a.) Whether it is at least as likely as not (50 percent or more probability) that the Veteran's fatal respiratory failure had its origin in service or is related to an incident of service, to include herbicide exposure. Note - It is not sufficient to provide a negative opinion regarding herbicide exposure simply because the condition is not on the list of conditions presumptively associated with exposure to herbicide agents. (b.) Whether it is at least as likely as not that any of the Veteran's service-connected disabilities and/or the medication(s) taken for the service-connected disabilities (i) contributed substantially or materially to cause his death, (ii) combined to cause his death, or (iii) aided or lent assistance to the production of his death. Note - The Veteran's service-connected disabilities at the time of his death included PTSD, hearing loss, tinnitus, and residuals of left clavicle and right hand fractures. (c.) Whether it is at least as likely as not that the Veteran's PTSD (i) caused or (ii) aggravated his Crohn's disease. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. The examiner should also provide an opinion as to whether VA's carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault in treating the Veteran resulted in his death. The examiner should also opine as to whether the proximate cause of his death was an event that was not reasonably foreseeable. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.