Citation Nr: 23020003 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 16-40 356 DATE: March 31, 2023 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 November 1958 to June 1967, to include service in the Republic of Vietnam from October 1965 to October 1966. He died in December 2015, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In her substantive appeal, the appellant requested a videoconference hearing. However, in correspondence dated May 2021, the appellant's representative withdrew this hearing request, in writing. Accordingly, the Board will proceed to a decision on this appeal without such a hearing. See 38 C.F.R. § 20.704(e). Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See also Darby v. Brown, 10 Vet. App. 243, 245 (1997). 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(a). The service-connected disability is considered to be the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312(b). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38C.F.R. §3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38U.S.C. §1116 (a)(2) and 38 C.F.R. §3.309 (e), to include ischemic heart disease. The Veteran's death certificate lists the immediate cause of death as cardiorespiratory arrest and congestive heart failure. At the time of the Veteran's death, service connection was not established for any disabilities. The appellant contends that the Veteran's exposure to herbicides during his military service caused ischemic heart failure and/or his death. As the prior March 2022 Board remand noted, the Veteran's service personnel records reflect that he served in in the Republic of Vietnam during the Vietnam era; therefore, he is presumed to have been exposed to herbicide agents, including Agent Orange. The March 2022 Board remand instructed the Agency of Original Jurisdiction (AOJ) to obtain a medical opinion regarding whether the Veteran had ischemic heart disease prior to his death and, if so, whether this or another disability that could be related to the Veteran's service was the cause of his death. A medical opinion was provided in March 2022. Following a thorough review of the record, the examiner opined that she could not provide a medical opinion on whether ischemic heart disease caused or contributed to the Veteran's death "without resorting to mere speculation due to incomplete records." To support this opinion, the examiner stated that the Veteran received care from a non-VAMC cardiologist and that records would also need to be requested from a particular physician, Dr. P, from any hospital at which the Veteran was treated, and from the University of Maryland Shore Medical Center. In a March 2023 informal hearing presentation, the appellant's representative stated that the appellant's health condition precludes her from being able to provide permission for the release of the Veteran's private treatment records; however, these records are critical to the adjudication of the claim and are not a part of the Veteran's file at this time. As such, a remand is necessary to attempt to obtain these records. The matter is REMANDED for the following action: 1. Provide the appellant with a VA Form 21-4142, Authorization and Consent to Release Information for any records from Dr. Paltoo, at the University of Maryland Shore Medical Center, and any private hospital from which the Veteran received treatment. After obtaining the completed VA Forms 21-4142, make reasonable efforts to obtain any outstanding private treatment records. Any records so obtained should be associated with the claims folder. **Please note that given the appellant's medical condition, attempts should be made to send notification of the VA Form 21-4142 to her appointed guardian, fiduciary, and/or other appropriate individual (if any) responsible for medical decisions. 2. After completing the foregoing development, the AOJ should request an addendum VA medical opinion. The examiner is asked to consider the following: (a.) The examiner should indicate whether the Veteran had any form of ischemic heart disease prior to his death. (b.) If the Veteran had ischemic heart disease prior to his death, the examiner should state whether it is at least as likely as not that the disorder caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or aided or lent assistance to his death. (c.) If the Veteran did not have ischemic heart disease prior to his death or the examiner determines that the disorder was not a principal or contributory cause of his death, the examiner should state whether it is at least as likely as not that the Veteran's cause of death was causally or etiologically related to his military service, including exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association **The Veteran is presumed to have been exposed to herbicides, including Agent Orange during service. (d.) A clear rationale for all opinions must be provided. 3. Then, adjudicate the claim. R. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Makarenko, Darya A. 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.