Citation Nr: 22016180 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-40 591 DATE: March 21, 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 April 1967 to February 1988, including service in the Republic of Vietnam. The Veteran unfortunately died in April 2017 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office. In September 2021, the appellant and her son testified in a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service connection for the cause of the Veteran's death The appellant seeks service connection for the cause of the Veteran's death. Medical Records The Veteran's death certificate reflects that the Veteran died at Integris Baptist Medical Center, a private hospital. There are no records from that facility in the claims file. The Veteran's terminal medical records may be relevant to the claim on appeal. Thus, to comply with VA's due to assist, the RO must attempt to obtain these outstanding private treatment records and all necessary releases. See 38 C.F.R. § 3.159(c). If any requested records are not available, then the RO should notify the appellant accordingly and give her an opportunity to submit the records herself, as these records may be relevant to her appeal. Medical Opinion The immediate cause of death reflected on the Veteran's death certificate is acute respiratory distress syndrome due to, or as a consequence of, chronic obstructive pulmonary disease; due to, or as a consequence of pneumonia; with multiple organ failure listed as a significant condition contributing to death. The appellant initially asserted that the Veteran's service-connected diabetes mellitus was a contributing factor in his death as diabetes affected his organs and played a role in his respiratory distress. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (2021). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability 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. A VA opinion as to the Veteran's cause of death was obtained in March 2018. The examiner, a medical physician, reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's service-connected conditions contributed substantially or materially to the Veteran's death. The examiner reasoned that the service-connected conditions had no anatomic or physiologic connection for a causal relationship to acute respiratory distress syndrome (ARDS), chronic obstructive pulmonary syndrome (COPS), pneumonia, and multiple organ failure. The examiner noted that particular attention was made to the statement of the claim and that the 3 articles reviewed identified an association of diabetes with ARDS, pneumonia and infection. The examiner noted that the articles do not study any causal relationship between diabetes and pulmonary disease such as ARDS, pneumonia or infection. To date, there is no causal relationship between diabetes and ARDS, pneumonia or infection." The Board finds the March 2018 opinion relating to the Veteran's cause of death is inadequate for decision-making purposes for two reasons. First, the rationale that the Veteran's service-connected disabilities and his causes of death have no anatomic or physiologic connection without further explanation is conclusory. Second, the examiner indicated that an article from Diabetologia Croatica was not reviewed as it was not written in English. However, the article, as contained in the claims file, is written in English, and as such, should be reviewable by the examiner. For these reasons, another opinion must be obtained. Subsequent to the March 2018 VA examination, the appellant proffered an alternative theory of entitlement, that the Veteran's death was due to respiratory issues which were the result of Agent Orange exposure and that "Agent Orange took over his body." See VA 21-4138 Statement in Support of Claim, received August 11, 2021; see Hearing Transcript, pp.3, 5, dated September 24, 2021. Her son noted that doctors told them that they had never seen such horrific lungs and scar tissue. This theory of entitlement post-dates the March 2018 medical opinion, and as such, was not considered by the examiner, or addressed by the RO. Finally, a July 2021 SSA Profile and Benefit Data form indicates the Veteran received benefits from the Social Security Administration (SSA). The Board is unable to determine whether the Veteran was in receipt of SSA disability benefits. The claims folder does not contain the Veteran's records from the SSA, and remand is required to verify whether the Veteran was in receipt of SSA disability benefits, and if so, obtain those records. In view of the foregoing, the matter is REMANDED for the following action: 1. Obtain any records from the Social Security Administration, to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 2. Provide the appellant with VA Form 21-4142, Authorization and Consent to Release Information to the VA, and request that she complete it and return in order to request any outstanding, private treatment records from Integris Baptist Medical Center, including his terminal medical records, and any other identified private medical provider that treated the Veteran for the causes of his death, i.e., acute respiratory distress syndrome, chronic obstructive pulmonary disease, pneumonia, and multiple organ failure. Make at least two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain another VA medical opinion for the purpose of determining the etiology of the Veteran's cause of death. The claims file and a copy of this remand must be made available to the reviewing examiner, who will acknowledge receipt and review of these materials. After a review of the record, the examiner is asked to respond to the following questions: a) Provide an opinion as to whether it is at least as likely as not (i.e., an approximate balance of evidence) that the COPD, pneumonia, and multiple organ failure that contributed materially or substantially to cause the Veteran's death was related to his active service, specifically to include the established exposure to herbicide agent exposure therein. b) Provide an opinion as to whether it is at least as likely as not (i.e., an approximate balance of evidence) that the Veteran's service-connected diabetes mellitus, contributed substantially or materially to his death. In rendering the opinion, the examiner must specifically review and discuss: (i) the appellant's contentions that the Veteran's service-connected diabetes mellitus was a contributing factor in his death as diabetes affected his organs and played a role in his respiratory distress. (ii) the four articles of record that suggest an association between diabetes mellitus and pulmonary disease. c) Provide an opinion as to whether it is at least as likely as not (i.e., an approximate balance of evidence) that the Veteran's remaining service-connected disabilities, PTSD, urinary incontinence, erectile dysfunction, peripheral vascular disease of the bilateral upper and lower extremities, and essential hypertension contributed substantially or materially to his death. A full and thorough rationale must be provided for any opinion given, referencing relevant medical and lay evidence where appropriate. 4. Then readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.