Citation Nr: 25005497 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 13-00 788 DATE: April 23, 2025 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from August 1963 to August 1966. Unfortunately, the Veteran died in January 2010. The Veteran's surviving spouse is the appellant in this matter. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2011 and March 2012 by a regional office (RO) of the Department of Veterans Affairs (VA). The appellant testified before another Veterans Law Judge (VLJ) in October 2014 and October 2017. However, that VLJ is no longer serving with the Board and, as such, a new hearing was held in August 2023 before the undersigned VLJ. In November 2024, the appellant requested another hearing. However, in April 2025, the appellant withdrew her hearing request. See April 2025 Correspondence. In May 2022, a Board decision denied service connection for chronic obstructive pulmonary disease (COPD) as well as service connection for the Veteran's cause of death. The Veteran appealed the May 2022 Board decision to the United States Court of Appeals for Veterans' Claims (Court). Pursuant to a March 2023 order granting the February 2023 Joint Motion for Partial Remand (JMPR), the Court vacated part of the Board's decision and remanded the issue of entitlement to service connection for the cause of the Veteran's death to the Board for action consistent with the terms of the JPMR. See February 2023 JMPR. In November 2023, the Board remanded this matter to obtain a medical opinion addressing the causes of the Veteran's death. See November 2023 Board Decision. In December 2024, a VA medical opinion was obtained which answered some, but not all, of the questions posed by the Board's November 2023 remand. See December 2024 Medical Opinion DBQ. In September 2024 and October 2024, clarification opinions were obtained to address the remaining remand directives. See September 2024 Medical Opinion DBQ; October 2024 Medical Opinion DBQ. Unfortunately, as explained below, additional development is required prior to the adjudication of this claim. 1. Entitlement to service connection for the Veteran's cause of death is remanded. The Board regrets the delay associated with this remand, particularly in light of this case's lengthy procedural history. However, upon review of the evidence received since the November 2023 Board decision, the Board finds that additional development is required prior to the adjudication of this matter. Specifically, clarification is required to reconcile conflicting information as to whether the Veteran's hypertension and/or atrial fibrillation were factors which contributed to his death. In November 2023, the Board instructed a VA examiner to address several questions pertaining to the Veteran's cause of death. See November 2023 Board Decision. Among those questions, the examiner was asked to identify the principal and contributory causes of the Veteran's death. Id. The examiner was also asked to opine as to whether any of the causes of death were related to the Veteran's active-duty service. Id. In December 2023, a VA medical opinion was obtained in which the examiner responded to the second question listed above but omitted an answer to the first. See December 2023 Medical Opinion DBQ. In his answer as to whether any of the causes of death were related to service, the examiner stated that the Veteran's hypertension was related to Agent Orange exposure. Id. The examiner then explained that hypertension is a "known significant risk factor for [the] development of atrial fibrillation." Id. By answering in this manner, the VA examiner seems to imply that hypertension and/or atrial fibrillation were principal or contributory factors in causing the Veteran's death. However, upon noticing that the examiner did not specifically identify the principal and contributory causes of death, the RO sought clarification opinions. In September 2024, the examiner was again asked to identify the principal and contributory causes of the Veteran's death. See September 2024 Medical Opinion DBQ. The examiner opined that the "Veteran's cause of death was COPD with smoker status as a contributing cause of death." Id. The examiner noted that "90% of all COPD cases are secondary to smoking," but did not make any mention of the Veteran's diagnosed heart conditions. Id. In October 2024, another clarification opinion was obtained. See October 2024 Medical Opinion DBQ. The examiner was asked to "[p]lease clarify what were the principal and contributor [sic] cause of the Veteran's death." Id. In response, the examiner stated: It is less likely than not that the [V]eteran's service connected condition contributed substantially or materially to the [V]eteran's death that is combined to cause death, or aided or lent assistance to the production of death or had debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death as death certificate shows veteran died of COPD which was secondary to smoking history. Id. The Board notes that the Veteran was not service connected for any disabilities prior to his death, nor does this opinion specifically address the Veteran's heart conditions. In the section provided for the examiner to give his rationale, he wrote only, "as stated above." Id. In light of the foregoing, the Board finds that an addendum opinion is required to clarify whether the Veteran's hypertension and/or atrial fibrillation were principal or contributory causes of death. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding the Veteran's hypertension and atrial fibrillation. The entire claims file must be provided to, and reviewed by, the examiner. 2. The examiner is asked to opine as to whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal) that the Veteran's hypertension and/or atrial fibrillation, to include the treatment thereof, contributed substantially or materially, combined to cause, or aided or lent assistance to the production of the Veteran's death. The Board is cognizant that the Veteran's certificate of death lists only COPD and smoking as causal factors. However, the examiner should perform a full review of the evidence of record and form their own conclusion as to whether hypertension and/or atrial fibrillation were causal factors in the Veteran's death. A disease or injury that affects vital organs may be a contributory cause where it would render the person materially less capable of resisting the effects of other diseases or injury primarily causing death or where the condition was of such severity as to have a material influence in accelerating death. " The examiner is advised that the appellant is competent to report the Veteran's symptoms and history of which she is personally aware, and such report must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects any such reports, they must provide a reason for doing so. " The term "at least as likely as not" does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against the conclusion. " Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. " If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. (continued on next page) 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. (a.) If any development action is incomplete, the appropriate corrective action must be implemented. (b.) If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachary J. Ellis, 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.