Citation Nr: 1417058 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 08-20 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D.Cleary INTRODUCTION The Veteran served on active duty from October 1956 to October 1976, including service in the Republic of Vietnam from February 1967 to February 1968 and from April 1970 to March 1971. The Veteran died on August [redacted], 2006. The appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In her July 2008 VA Form 9, the appellant requested a Travel Board hearing. In a September 2011 signed statement, she withdrew her hearing request. In June 2012, the Board remanded this case for further development. As will be discussed below, the Board must again remand the appeal because the claims file does not reflect substantial compliance with the February 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). REMAND The June 2012 remand, in pertinent part, directed the RO to obtain an opinion from a VA physician regarding the etiology of the Veteran's death. In a July 2012 opinion, the VA examiner found that the Veteran's end-stage cancer was less likely as not related to or caused by his service connected conditions or his military service, including exposure to herbicides. It was reported that cholangiocarcinoma was not an Agent Orange presumptive disease. He added that this cancer was unrelated to asbestos exposure. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008) Although the examiner attempted to comply with the remand directives, the offered opinion does not give an adequate rationale and needs clarification. For example, the physician indicated that cholangiocarcinoma was not an Agent Orange presumptive disease. That is true, but does not mean it may not be service-connected anyway. There was no mention or reconciliation of the November 2002 Asbestos Evaluation Summary from Dr. Bass or the June 2006 statement from Dr. Joao A. De Andrade. A complete rationale for the opinions expressed was not included. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on an appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA "a concomitant duty to ensure compliance with the terms of the remand." Stegall, 11 Vet. App. at 270. The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, "the Board itself errs in failing to insure compliance." Id. Moreover, the Court has held that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 3.159(c)(4) (2013). Accordingly, an addendum opinion is necessary prior to a Board decision on the merits of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims file to the June 2012 VA physician for an addendum opinion. (If the examiner is no longer available, forward the claims file to an appropriate VA medical professional.) The entire claims file, and a copy of this remand, must be provided to and reviewed by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained therein and not otherwise available must be printed and associated with the paper claims file for the examiner's review. After reviewing the record, the examiner should indicate whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's service-connected coronary artery disease, prostate cancer, and/or inservice exposure to asbestos or presumed inservice exposure to Agent Orange caused or contributed materially to his death. Any opinion should be reconciled with the August 2006 Death Certificate (noting end-stage cancer as the immediate and only cause of death), the November 2002 Asbestos Evaluation Summary from Dr. Bass or the June 2006 statement from Dr. Joao A. De Andrade, and the appellant's contentions (to the effect that exposure to asbestos as a helicopter inspector and mechanic in service caused or contributed to his death). The examiner must provide a rationale for any opinion expressed. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Finally, after completing the above, and any other development deemed necessary, readjudicate the appellant's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, the appellant and her representative should be provided with a SSOC and afforded an appropriate time period for response before returning to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. 2013). _________________________________________________ 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 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) (2013). Department of Veterans Affairs