Citation Nr: 22072167 Decision Date: 12/30/22 Archive Date: 12/30/22 DOCKET NO. 17-23 367 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to service-connected burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1980 to May 1988 and from September 1988 to January 1992. He died in March 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in June 2021, wherein the Board denied the claim for spousal recognition, and remanded the issue of service connection for cause of death. The cause of death claim, as well as the burial benefits claim, were again remanded in December 2021. The Veteran appealed the June 2021 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In August 2022, the parties entered into a Stipulated Agreement recognizing the appellant as the surviving spouse of the Veteran for purposes of establishing eligibility to Dependency and Indemnity Compensation (DIC) and Survivors Pension benefits. As a result of this Agreement, the appeal of the June 2021 Board decision was terminated, and a September 2022 Administrative Decision by VA's Office of Administrative Review (OAR) recognized the appellant as the surviving spouse. However, a September 2022 Supplemental Statement of the Case (SSOC) continued to deny service connection for the cause of death and burial benefits. Thereafter, the Veteran's attorney submitted a VA Form 10182 on December 9, 2022, presumably to opt these issues into VA's new appeals system under the AMA. The Form 10182 identified the date of the decision being appealed as September 15, 2022, which was the date of the SSOC. As explained in the appeal rights with the SSOC, to opt-in to the AMA, the Form 10182 must be received within 60 days. However, as this Form 10182 was received more than 60 days after the SSOC, it cannot be accepted as a timely opt-in. The Veteran and his attorney will be separately notified that this was incorrectly docketed as an AMA appeal. Since the opt-in was untimely, the issues will remain in VA's Legacy appeals system. The Veteran's DD-214 reflects that he was stationed in Southwest Asia during the Persian Gulf War from December 1990 to May 1991. Prior to his death, the Veteran provided statements wherein he asserted that he was exposed to JP-8 jet fuel directly and had exposure to smoke and particles from oil well fires, as well as solvent and fuel fumes. He stated that he was near the burning oil wells and also burn pits on a regular basis during his service in Operation Desert Storm. See 2011 Gulf War examination. He was diagnosed with idiopathic pulmonary hemosiderosis (IPH) prior to his death, with symptoms of trouble breathing, chest tightness and lethargy and treatment for these symptoms since at least 2010. Service connection may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, which includes a medically unexplained chronic multisymptom illness (MUCMI). A MUCMI is defined as a diagnosed illness without conclusive pathophysiology or etiology. See 38 C.F.R. § 3.317(a)(2)(ii). In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) held an illness is medically unexplained where either the etiology or pathophysiology of the illness is inconclusive as to the individual Veteran. 30 Vet. App. 383, 390-92 (2018). The 2017, 2021, and 2022 examiners all found that although IPH is a clear and specific diagnosis, the etiology is unknown or speculative. The June 2021 VA examiner explained that "the pathophysiology is that iron deposition in the pulmonary macrophages (hemosiderosis) occurs due to recurrent alveolar hemorrhaging. The hemorrhaging is thought to be due to immunologic mechanisms and/or structural defects in alveolar capillaries for unknown reasons. The cause of Idiopathic Pulmonary Hemosiderosis in unknown. The specific pathophysiology and etiology of IPH in this Veteran, or in any patient with IPH, remains unknown." (Emphasis added). Following remand, the September 2022 VA opinion provided an extensive discussion on IPH, but did not provide an adequate opinion as to the etiology in this case. Specifically, the examiner stated, in part, that this was not a MUCMI because "Medical judgement would see this Veteran's cause of death was from a diagnosed disease of specific etiology, namely --idiopathic, as opposed to unknown etiology." As noted above, a diagnosed MUCMI refers to a diagnosed illness that is medically unexplained, either because the etiology or the pathophysiology is inconclusive. Any illness that is at least partially understood, however, will not be considered "medically unexplained" and, therefore, not be considered a MUCMI. Stewart, 30 Vet. App. 383, 389-90. The 2022 opinion is internally inconsistent as it indicates, on the one hand, the etiology is unknown (for IPH in general, not just this Veteran), yet it is not a MUCMI as it is "a diagnosed disease of specific etiology." While the Board appreciates the fact that the medical opinions as a whole, and the literature cited therein, establish that IPH is of unknown etiology, the question remains whether this Veteran's IPH was as likely as not a MUCMI. The standard of proof in VA's benefits system is an "approximate balance" or "nearly equal," which is different than medical studies that provide a more conclusive answer to the question of disease etiology. The Board lacks the medical expertise to conclude this Veteran's IPH was a MUCMI, and due to the inconsistencies in the medical opinions, the Board has no choice but to remand this case once again. Furthermore, while the 2021 examiner considered the 2020 report from the National Academy of Sciences, Respiratory Health Effects of Airborne Hazards Exposures in the Southwest Asia Theater of Military Operations, VA has since convened a workgroup of subject matter experts to review this report and other relevant studies concerning respiratory conditions in Gulf War veterans. While IPH has not been added as a condition VA presumes is related to Gulf War exposures, the discussion of the various studies in the proposed rule may have a bearing on the medical question in this case. See 86 FR 42724 (August 5, 2021). The matters are REMANDED for the following action: Forward the claims file to the 2022 VA examiner, or another examiner if that examiner is not available, to obtain an addendum opinion addressing the relationship, if any, between the Veteran's service and his cause of death. Following a review of the complete record, the examiner is asked to address the following: Was the Veteran's idiopathic pulmonary hemosiderosis at least as likely as not (meaning an "approximate balance" or "nearly equal") a) due to a medically unexplained chronic multisymptom illness with either no known etiology or the pathophysiology of the illness is inconclusive, OR b) was it a diagnosable chronic multisymptom illness where both the etiology and the pathophysiology of the illness are partially, but not totally, understood. In answering this question, the examiner must consider the Veteran's individual circumstances. Was the Veteran's idiopathic pulmonary hemosiderosis at least as likely as not (meaning an "approximate balance" or "nearly equal") etiologically related to his service, to include environmental exposures such as fine particulate matter and burn pits? The examiner should consider the various studies discussed in 86 Fed. Reg. 42724 (August 5, 2021), where VA proposed to add conditions presumptively associated with Persian Gulf service. However, the fact IPH is not a presumptive condition is not dispositive; service connection can still be granted if it was as likely as not etiologically related to the Veteran's Persian Gulf exposures. A thorough rationale for the opinions must be provided, and the examiner should consider the opinions previously offered, the medical principles concerning IPH, the Veteran's medical history, and the relevant studies concerning Gulf War veterans' environmental exposures and respiratory conditions. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.