Citation Nr: 1305148 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 07-38 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran served on active military duty from January 1963 to August 1973. He died in December 2005, and the appellant is the Veteran's widow. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May and November 2006 rating decisions of the Department of Veterans Affairs (VA) in Nashville, Tennessee that denied service connection for cause of death. The Veteran requested a hearing in her December 2007 substantive appeal. She was scheduled for a hearing in May 2009 and failed to appear. She has not asserted good cause for missing her scheduled hearing and her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). In March 2011, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC), for additional development. The AMC completed the additional development as directed, continued to deny the claim, and returned the case to the Board for additional appellate review. In February 2012, the Board denied entitlement to service connection for cause of death. The appellant filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). By Order dated September 2012, the Court granted a Joint Motion for Remand (JMR), which vacated the February 2012 Board decision and remanded the issues to the Board for development and readjudication consistent with the JMR. A review of the Virtual VA paperless claims processing system does not show any pertinent evidence that is not already associated with the physical claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Additional development is necessary to comply with the September 2012 JMR instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Court or Board is not complied with, the Board itself errs in failing to insure compliance. Id. The JMR determined that the appellant had not been afforded an adequate VA medical opinion for her claim. Stelf v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The examiner furnishing the April 2011 VA medical opinion stated that the etiology of the Veteran's cancer was unknown; however, he also determined that there was no etiological link between herbicide exposure and the Veteran's cancer. The JMR found that such an opinion was unclear or internally inconsistent. Hence, it was inadequate for adjudication purposes. See id. Another medical opinion is needed as described in the instructions below. Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Contact the April 2011 VA examiner for an addendum medical opinion. A copy of the claims folder, Remand, and any pertinent documents in the appellant's Virtual VA efolder must be made available for review. The examiner is requested to clarify the rationale for his negative determination in April 2011. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's death had its clinical onset in service or is the result of his presumed in-service exposure to herbicides or otherwise related to active duty service. The examiner must address the inconsistency of characterizing the etiology of Veteran's hepatic cancer as unknown and then ruling out a relationship to herbicide exposure. He should include cites to any medical studies or publications that underlie his conclusions. A thorough rationale must be provided. If the April 2011 VA examiner is unavailable, contact another suitable healthcare provider for a medical opinion. If the examiner determines that an answer to any question cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. After completing all development required to adjudicate the appellant's claim, re-adjudicate this issue. If the benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).