Citation Nr: A25038912 Decision Date: 04/29/25 Archive Date: 04/29/25 DOCKET NO. 241121-488690 DATE: April 29, 2025 REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1963 to April 1966. His military occupational specialty (MOS) was engineering equipment repairman. The Veteran died in February 2010 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2024 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran's death. The rating decision arises from an original claim for cause of death in November 2023. In November 2024, the Appellant submitted a VA Form 10182 Notice of Disagreement (NOD) under the Appeals Modernization Act (AMA) framework, electing the hearing docket by the Board. The Appellant was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in March 2025. The Board may only consider the evidence of record at the time of the notification of the agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Here, however, as the transcript of the March 2025 hearing reflects, at the proceeding the Appellant requested that the 90-day post hearing period be waived. Thus, the Board will proceed to adjudicate this appeal. Entitlement to service connection for cause of the Veteran's death is remanded. The Board finds that this matter must be remanded for another TERA memo and VA medical opinion in light of pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). At the hearing, the Appellant, through her representative, urged that remand is warranted in order to obtain an updated Toxic Exposure Risk Activity (TERA) memorandum and an updated VA medical opinion to correct a pre-decisional duty to assist error. In August 2022, the SFC Hearth Robinson Honoring Our PACT Act, Pub. L. 117-168, 136 Stat. 1759 ("PACT Act")) was passed. Under the PACT Act, VA is required to provide a disability examination and medical nexus opinion when a veteran submits a compensation claim and has evidence of a disability and participation in a TERA, but the evidence is not sufficient to establish service connection for the disability. See 38 U.S.C. § 1168 (a) (see PACT Act, Sec. 303). That provision provides, in pertinent part: (a)(1) Medical examinations and medical opinions.-Except as provided in subsection (b), if a veteran submits to the Secretary a claim for compensation for a service-connected disability under section 1110 of this title with evidence of a disability and evidence of participation in a toxic exposure risk activity [TERA] during active military, naval, air, or space service, and such evidence is not sufficient to establish a service connection for the disability, the Secretary shall- (A) provide the veteran with a medical examination under section 5103A(d) of this title; and (B) obtain a medical opinion (to be requested by the Secretary in connection with the medical examination under subparagraph (A)) as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity [TERA]. Id. (emphasis added). The PACT Act defines a TERA to mean "any activity- (i) that requires a corresponding entry in an exposure tracking record system (as defined in section 1119(c) of this title) for the veteran who carried out the activity; or (ii) that the Secretary determines qualifies for purposes of this subsection when taking into account what is reasonably prudent to protect the health of veterans." 38 U.S.C. § 1168 (a) requires VA examination and a nexus opinion regarding whether the cause of death is related service to include TERAs established in a VA TERA memo. It is relevant to note that under 38 U.S.C. § 1168 (a), (2) when providing the Secretary with a medical opinion under paragraph (1)(B) for a veteran, the health care provider shall consider (A) the total potential exposure through all applicable military deployments of the veteran; and (B) the synergistic, combined effect of all toxic exposure risk activities of the veteran. 38 U.S.C. § 1168. Appellant testified that her husband's death is related to service inasmuch as he had problems with his feet due to service. He had to use a scooter towards the end and he fell often. She noted that the day he died, he fell going out of the house and down some steps onto his carport. He lay in the cold there for a long time until an ambulance came and, sadly, he eventually died after developing pneumonia while hospitalized for that incident. She theorizes that foot problems due to service caused the fall and/or his exposure to all of the toxins in service, to include but not limited to asbestos, caused respiratory issues that hastened/caused his death. The testimony reflects that the Veteran did routine maintenance on heavy equipment and was exposed not only to asbestos, but also to brake dust, muffler-wrapping material, industrial cleaning solvents and related chemicals due to his MOS. It is felt that these were toxins that could very well have caused conditions that are causally or contributorily related to his death. She noted that she was informed that service connection was in effect for bilateral hearing loss, bilateral and unilateral pes planus, and epidermophytosis of the feet, and onychomycosis right toe. Appellant testified that although it was a long time ago, she remembers the Veteran had respiratory issues as a younger man when he got out of service, which she urges could reasonably have been due to his toxic exposures in service. The Appellant detail contentions relevant to her theories as to the cause of her husband's death in a November 2023 statement in support of claim which she submitted along with claim. These are consistent with her testimony. She also submitted supportive medical literature. The Veteran's death certificate reflects he died in February 2010 due to acute respiratory failure with pneumonia and fever. Contributing causes of death were diabetes, hypertension, atrial fibrillation, kidney disease, and chronic back pain. A January 2023 rating decision based on a special review (Nehmer) reflects that service connection for accrued benefits purposes was in effect for bilateral defective hearing, bilateral pes planus, tinnitus and epidermophytosis of the feet with onychomycosis, right great toe. The Appellant testified that there should have been a revised, more accurate TERA memo and a corresponding updated VA medical opinion to correct pre-decisional duty-to-assist error in light of the evidence that was of record at the time prior to the rating decision. The representative observed that the exposure to the many toxic chemicals, brake dust, and things like that were not adequately identified or addressed in the TERA memo or the corresponding VA examination. All of the clearly potential exposures that flow from the Veteran's MOS, were not taken into consideration. The September 2024 VA TERA memo notes that with the MOS of engineering equipment repairman, exposure to asbestos is, "probable, (exposed to brake dust, muffler wrapping material, industrial cleaning solvents/chemicals/agents, engine oils, diesel, petroleum, asbestos)." Thus, exposure to asbestos is conceded as well as above listed chemicals. It notes that the widow claimed exposure to these chemicals and asbestos, which is conceded. The resultant October 2024 VA Disability Benefits Questionnaire (DBQ) includes negative nexus opinions both as to toxic exposure and considering service-connected conditions. However, the substantive TERA rationale only relates to asbestos as a toxin and does not actually address the relevant impact of his respiratory problems manifested in his lifetime nor does the rationale adequately address whether the other toxic exposures contributed to his death. Additionally, the opinion does not adequately address the relevant theory that service-connected disability, to include disability of the feet, contributed to his death as documented in the record. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) ("The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Thus, remand is warranted to correct pre-decisional duty to assist error as to TERA memo and medical opinion that occurred prior to the rating decision on appeal. The matters are REMANDED for the following action: 1. Prepare an updated Toxic Exposure Risk Activity (TERA) memo that considers all potential toxic exposures, considering the testimony. 2. Forward the Veteran's file to a VA examiner to provide a medical opinion on the issue of service connection for the cause of the Veteran's death. The examiner must provide a medical opinion, with adequate rationale, as to the following: (a) Whether it is at least as likely as not that the Veteran's acute respiratory failure with pneumonia and fever, which caused his death, had its onset during, or was otherwise etiologically related to, any aspect of his periods of service. Please also address the contributing causes of death, diabetes, hypertension, atrial fibrillation, kidney disease, and chronic back pain. Please address the impact of TERA. (b) Whether it is at least as likely as not the service-connected conditions bilateral defective hearing, bilateral pes planus, tinnitus and epidermophytosis of the feet with onychomycosis, right great toe caused, substantially or materially contributed to cause, or aided or lent assistance to cause, the Veteran's death. Please address the impact of TERA. The examiner must acknowledge and discuss the Appellant's competent and credible reports. As to TERA, the VA clinician must consider the total potential exposure through all applicable deployments and the synergistic, combined effect of all TERAs involving the Veteran. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.