Citation Nr: 22012142 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-43 092 DATE: March 2, 2022 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 March 1969 to January 1971. Service in the Republic of Vietnam is indicated by the record. The Veteran was the recipient of the Combat Infantry Badge (CIB) and Purple Heart Medal, among with other awards and decorations. He died in June 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. She filed a notice of disagreement (NOD) in August 2016 and a statement of the case (SOC) was issued in July 2018. The appellant perfected a timely appeal in August 2018. In October 2020, the appellant presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In an April 2021 Board decision, the claim was remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in November 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. Unfortunately, additional remand is necessary for further evidentiary development of the appellant's appeal. The Board is cognizant that this case has been in adjudicative status for years and that it has already been remanded in the past. The Board assures the appellant that it would not be remanding this case again unless it was essential for a full and fair adjudication of her pending appeal. The April 2021 Board decision remanded the appeal to obtain a VA medical opinion to address the appellant's contentions that the Veteran's service-connected ischemic heart disability (IHD) and/or posttraumatic stress disorder (PTSD) caused or contributed to his death. In rendering his/her opinion, the examiner was instructed to specifically address two journal articles submitted by the appellant in support of her contentions; specifically, 'Cardiac Manifestations of Idiopathic Pulmonary Fibrosis' and 'Chronic Obstructive Pulmonary Disease and Ischemic Heart Disease Comorbidity: Overview of Mechanisms and Clinical Management.' She also submitted a fact sheet on 'Sudden Cardiac Arrest and Sudden Cardiac Death' from the Cleveland Clinic. The examiner was also instructed to address the contention of the daughter of the Veteran and appellant, who is a nurse, who reported her belief that, based upon her medical research and documentation provided by the appellant, the Veteran's service-connected IHD was more than likely a contributing factor to his cause of death. See the Board hearing transcript, pg. 4. She asserted that the Veteran's service-connected heart disability "essentially rendered him less capable of resisting the effects of the lung disability." Id. Pursuant to the Board Remand, a VA medical opinion was obtained in October 2021. The examiner rendered the following opinion, I have been asked to provide a medical opinion as to whether this [patient's] ischemic heart disease caused or contributed to his ultimate death. I recognize and have noted that it must be shown that it is at least as likely as not (50 percent or greater probability) the Veteran's service connected condition(s) caused OR substantially contributed to the Veteran's death. I recognize and have noted that it is not sufficient to show that it merely casually shared in producing death; rather, it must be shown that there was a definitive causal connection. This patient passed away on 6/23/2015 from acute respiratory distress syndrome. As noted on Death Summary note of 6/16/2015, patient was admitted for his COPD. He went into respiratory failure. Treatment measures were unsuccessful in reviving him. Thus, based on the evidence of record, there is insufficient evidence to establish a nexus, with greater than 50% probability, that this patient's IHD caused or materially contributed to his death. In a separate October 2021 medical opinion, a different VA examiner opined that the Veteran's PTSD less likely than not contributed to the cause of the Veteran's death. The examiner explained, The Veteran was diagnosed with PTSD in 2013 from his time in Vietnam. The Veteran had COPD and went to the hospital in 5-2015 indicating chest pain. The medical note indicates a severe cough for some time and it was associated with chills, fever, night sweats; there was no chest pain at the time (pg 13). The Veteran had other ongoing medical conditions that are related to heart conditions. He was admitted for chronic obstructive pulmonary disease (COPD) at that time. His past medical history includes coronary artery disease (post-stent placement), hypertension, and interstitial lung disease. Additionally, a May 2015 chest computed tomography angiography (CTA) showed cardiomegaly. It should also be noted that we received a letter from a medical doctor at Ohio Chest Physicians, Ltd., which states: "Mr. Larry Hollis death was mainly caused by his severe lung disease - 2nd to low oxygen." Although there are some articles submitted trying to support this claim, the research is not conclusive evidence (ncbi.nlm.nih.gov COPD and PTSD). The reports of the Veteran at the time of being in the hospital in 2015 is more consistent with death due to lung disease and lack of oxygen, nothing that is caused by PTSD from over 50 years ago. A VA addendum opinion was obtained in November 2021 because the October 2021 VA examiner, who rendered the opinion as to the Veteran's IHD, failed to address the opinion offered by the Veteran's daughter, a nurse, as instructed in the Board Remand. In response, in the November 2021 addendum opinion, the VA examiner stated the following: "Patient's medically untrained daughter's lay contention offers limited probative value against the clinical assessment of the formally trained medical providers at the time of his death. She is not medically qualified to determine what caused his death." Significantly, the October 2021 VA medical opinion concerning the question of whether the Veteran's IHD caused or contributed to his death, as well as the November 2021 VA addendum opinion, are wholly inadequate and failed to comply with the Board's remand instructions. In the October 2021 medical opinion, the VA examiner did not provide sufficient rationale to support the conclusion rendered and, instead, relied upon a terse explanation of the Veteran's medical history without addressing the potential impact of the Veteran's service-connected IHD on his death. Moreover, the VA examiner failed to address the pertinent journal articles submitted by the Veteran's daughter, as instructed in the Board remand. The Board further finds that the November 2021 addendum opinion is inadequate as the VA examiner was dismissive of the Board's explicit instruction to address the contention raised by the Veteran's daughter that the service-connected heart disability was a contributing cause of the Veteran's death as it rendered him less capable of resisting the effects of the lung disability. The Board again notes that the Veteran's daughter is a nurse and therefore not "medically untrained," as characterized by the VA examiner. Due to the inadequacies of the October 2021 and November 2021 VA medical opinions, the RO has failed to substantially comply with the April 2021 Remand directives, delaying the Board's ability to provide a decision to the appellant. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon remand, the RO must obtain a VA medical opinion that fully complies with the Board's Remand instructions set forth below. The matters are REMANDED for the following action: Arrange to have a VA clinician, other than the VA examiner who provided the October 2021 and November 2021 VA medical opinions, review the record and provide opinion addressing the relationship, if any, between the Veteran's service-connected disabilities and his death. After reviewing the record, the clinician should render an opinion as to whether it is at least as likely as not that the Veteran's service-connected IHD caused or materially contributed to his death. In rendering his/her opinion, the clinician should address the contention of the Veteran's daughter (a nurse) that the service-connected heart disability rendered the Veteran's less capable of resisting the effects of his fatal lung disability. The clinician should also address the articles submitted by the appellant: 'Cardiac Manifestations of Idiopathic Pulmonary Fibrosis' and 'Chronic Obstructive Pulmonary Disease and Ischemic Heart Disease Comorbidity: Overview of Mechanisms and Clinical Management,' as well as the fact sheet on 'Sudden Cardiac Arrest and Sudden Cardiac Death' from the Cleveland Clinic. Complete, clearly-stated rationale for the conclusions reached must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.