Citation Nr: 22028443 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 16-62 854 DATE: May 13, 2022 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served in the Army from May 1967 to May 1970. The Veteran passed away in July 2014; the appellant is the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled for a Board hearing in 2022, but subsequently failed to appear for the hearing. The appellant has not requested to reschedule the hearing and has not explained why she failed to appear. Under these circumstances, the hearing request is considered withdrawn. See 38C.F.R. §20.704. 1. Entitlement to service connection for cause of death is remanded. The appellant seeks service connection for the cause of the Veteran's death. The appellant contends that the Veteran died due to his service-connected disabilities. See July 2015 NOD. Specifically, she stated that the Veteran had a diagnosis of coronary atherosclerosis that contributed to his death and that the medical examiner had indicated as much. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered 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. 38 C.F.R. § 3.312 (b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or 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. 38 C.F.R. § 3.312 (c). The immediate cause of the Veteran's death was cardiac arrythmia as due to hypertensive heart disease. See July 2014 Death Certificate. At the time of his death the Veteran was service connected for posttraumatic stress disorder (PTSD), diabetes mellitus, type II, bilateral lower extremity peripheral neuropathy, erectile dysfunction and calluses of the feet. A medical opinion on the Veteran's cause of death was obtained in April 2015. The examiner opined that the Veteran's cause of death was less likely than not caused by or substantively contributed to by coronary atherosclerosis. By way of rationale, the examiner found: The autopsy showed two 40-50% lesions that would be considered atherosclerotic coronary lesions however, this level of restriction would not have caused clinical ischemia. Despite the 40-50% lesions, there would not have been a significant reduction in blood flow to the heart muscle leading to cardiac ischemia and no contribution of these lesions to his death. An additional opinion was sought by the RO in October 2016. The examiner was asked to opine on whether the Veteran's service-connected conditions and medications taken therefor contributed to the Veteran's death. The examiner was also asked to opine on whether the Veteran's hypertension HTN was caused or aggravated by the Veteran's service-connected conditions. The examiner opined that the Veteran's service-connected conditions less likely than not contributed to the Veteran's death. By way of rationale, the examiner found: Based on the autopsy report, veteran died of an acute cardiac arrhythmia due to hypertensive heart disease. He also had mild-mod CAD which had been silent until his death. Although in some cases this type of fatal arrhythmia can occur from a myocardial infarction caused from underlying ischemic heart disease, this can also occur from several other medical conditions such as a ventricular arrhythmia caused from electrolyte imbalance or acute viral myocarditis, prescription drugs that can increase QT interval, coronary spasm caused from cocaine like drugs, electrical shock, massive stroke, massive pulmonary embolism, drug overdose and obstructive sleep apnea etc., just to name a few conditions. The fact that veteran had no prior symptoms of cardiac ischemia and autopsy report only showed a mild coronary blockage (which does not cause ischemia and did not cause any infarction), makes it less likely that ischemic heart disease was the probable cause of his death caused from acute cardiac arrhythmia [sic]. His other SC conditions including Type II DM with Neuropathy and PTSD are not known to cause Cardiac arrhythmias or hypertensive heart disease. With regard to the Veteran's hypertension, the examiner concluded that because the Veteran was not diagnosed with diabetic nephropathy, the Veteran's hypertension was not caused by his service-connected diabetes and additionally found that there is no evidence that his additional service-connected disabilities were not known to cause hypertension. The Board finds the opinion inadequate as it is unclear whether the clinician, in forming the opinion, considered causation and aggravation as independent concepts. See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (emphasizing that a specific inquiry directly addressing aggravation, separate from whether a service-connected disability caused the disability, is necessary when an examiner addresses secondary service connection). Moreover, the examiner listed additional medical conditions aside from underlying ischemic heart disease that could cause a fatal arrythmia, as in the Veteran's case, though there is no medical evidence that the Veteran had one or more of these conditions. Initially, the Board observes that the opinion emphasizes causation in medical findings and failed to address whether the Veteran's service-connected disabilities aggravated his hypertension and/or contributed to the Veteran's death. The Board observes that aggravation of a nonservice-connected disability by a service-connected disability is independent of direct causation and must ensure that medical opinions are adequate on that question. See Allen v. Brown, 7 Vet. App. 439 (1995). Although the same medical rationale may apply to both theories, the Board, on its own, is unable to make this unsubstantiated medical finding or conclusion. The Board, thus, can only consider independent medical evidence to support this finding or conclusion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matter is REMANDED for the following actions: 1. Obtain a VA medical opinion to determine the nature and likely cause of the Veteran's death. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran's service-connected PTSD, diabetes mellitus, type II, bilateral lower extremity peripheral neuropathy and/or calluses of the feet were principal or contributory causes of death? Please explain why. **The examiner is reminded that a contributory cause of death is inherently not related to the principal cause of death. In determining whether the disabilities contributed to death, it must be shown that they contributed substantially or materially; that it combined to cause death; or 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. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran's cause of death was aggravated, either alone or in concert, by his service-connected PTSD, diabetes mellitus, type II, bilateral lower extremity peripheral neuropathy and/or calluses of the feet? Please explain why. **Please note that "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (c) Is it at least as likely as not that the Veteran's hypertension was (1) proximately due to service-connected PTSD, or (2) aggravated beyond its natural progression by service-connected disabilities. Provide a rationale that deals with causation and aggravation as and aggravation as independent concepts. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.