Citation Nr: 23014366 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 18-55 441 DATE: March 9, 2023 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to January 1972. The Veteran died on May [REDACTED], 2016. The Veteran received the National Defense Service Medal and Good Conduct Medal. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran authorized a veterans service organization (VSO) to be his representative during his lifetime. However, the record does not reflect that the appellant has assigned an authorized representative. The Board notes that Veteran's VSO representative has submitted argument on behalf of the appellant regarding this matter. Additionally, as this matter is being remanded, the appellant may appoint an accredited representative, if so desired. This appeal has been before the Board previously. To assist with this matter, the Board will provide a brief, historical summary. In August 2019, the Board remanded the issue on appeal for the AOJ to obtain a VA medical opinion regarding whether the Veteran's service-connected major depressive disorder was a contributory cause of the Veteran's heart failure and death. Subsequently, after a March 2020 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. Service connection for cause of death. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the claim for cause of death, a surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. As noted above, the appellant is the Veteran's surviving spouse. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other disability, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A surviving spouse may also demonstrate that the disability that caused the Veteran's death should have been service-connected. 38 C.F.R. § 3.312. To establish service-connection, an appellant must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service or nexus. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 C.F.R. § 3.303(a). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The appellant contends that service connection is warranted for the Veteran's cause of death. Specifically, it has been asserted that treatment records after 1972 show heart failure due to the Veteran's service-connected psychiatric disorder. See 12/24/2018 Form 9; see also 5/3/2019 Appellate Brief. The Veteran's death certificate lists his immediate cause of death as "heart failure" as consequence of "diabetes mellitus." See 12/7/2016 Fax Cover Sheet, at page 4. In December 2018, the appellant reported that the Veteran received treatment at the West Haven VA and the Newington VA hospitals in Connecticut, as well as the White River Junction VA hospital in Vermont. See 12/24/2018 Correspondence. The Board notes that these VA treatment records are missing from the Veteran's claims file and, as such, were not considered by the above-mentioned October 2019 VA clinician. Of note, the clinician, in providing a negative opinion, noted that the record did not contain cardiology consultations or clinic notes and an echocardiogram was not of record. As such, the Board finds that on remand, attempts are to be made to obtain such records as they would likely be pertinent to the Veteran's disability picture. Additionally, once obtained, the Board finds that a retrospective opinion that considers such records is warranted. 38 U.S.C. § 5103A(a). The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from the West Haven VA nad the Newington VA hospitals in Connecticut, and the White River Junction VA hospital in Vermont. See 12/24/2018 Correspondence. Document all requests for information as well as responses in the claims file. 2. After completing #1, obtain an addendum opinion from an appropriate physician regarding the Veteran's cause of death. A copy of this Remand request should also be provided. The reviewing physician is asked to provide a response to the following: Whether it is at least as likely as not (probability of approximately 50 percent or more) that the Veteran's service-connected major depressive disorder was the cause or substantially contributed to the Veteran's death, reported as heart failure. **In doing so, please explicitly address the appellant's contention that treatment records after 1972 show heart failure due to the Veteran's service-connected major depressive disorder. See 12/24/2018 Form 9; see also 5/3/2019 Appellate Brief. The examiner is asked to provide specific evidence of record to support his conclusions, such as references from this Veteran's relevant medical history and/or medical literature. The examiner is reminded that the competent and probative evidence only needs to be in approximate balance (or nearly equal).** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.