Citation Nr: 1751575 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-33 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for malignant neoplasms of the digestive system, exclusive of skin growths, claimed as esophageal carcinoma with metastasis to the lymph nodes and bone, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to July 1967. The appellant is the Veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran initially filed the claim but died in April 2011 during the pendency of this appeal. The appellant is his surviving spouse. She has been substituted as the claimant for the purpose of processing this claim to completion. The law was amended to permit substitution of claims when the original claimant dies during the pendency of the claim or appeal. 38 U.S.C.A. § 5121A (West 2014). The amendment applies to pending claims on appeal where the death occurred on or after October 10, 2008. The appellant duly filed a VA Form 21-534 (Application for DIC, Death Pension & Accrued Benefits by Spouse or Child), received by the RO in May 2011, which allows for substitution. See 38 C.F.R. § 3.1010 (2016). In November 2014, the appellant testified before the Board at the RO (Travel Board hearing). A transcript of the hearing is of record. In February 2015, the Board remanded the claim for further development, to include obtaining a VA opinion to determine whether the Veteran's esophageal cancer was etiologically related to his in-service herbicide exposure, or in the alternative, whether the Veteran suffered from any other cancers that were etiologically related to in-service herbicide exposure. In April 2016, the Board again remanded the issue, finding that the May 2015 medical opinion, obtained pursuant to the Board's previous February 2015 remand, failed to substantially comply with the Board's prior remand instructions and was therefore inadequate to decide the claim. Additionally, the Board found that the May 2015 medical opinion was not provided by a physician with the requisite expertise to address the Veteran's complicated medical picture regarding the metastatic esophageal cancer that caused his death. Accordingly, the Board requested that another medical opinion be provided by a different physician with the appropriate expertise to determine whether the Veteran's esophageal cancer was etiologically related to his in-service herbicide exposure, or in the alternative, whether he suffered from any other cancers that were etiologically related to in-service herbicide exposure. Thus, in May 2016, an oncologist provided a new medical opinion. Subsequently, the claim was readjudicated in a May 2016 supplemental statement of the case, which continued to deny this claim. When the case was returned to the Board in December 2016, the Veteran's claim for service connection was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2017, the Veteran and the Secretary of VA (parties) submitted a Joint Motion for Partial Remand (JMR), which vacated and remanded the Board's December 2016 decision for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the October 2017 JMR, the parties agreed the Board errored in finding the May 2016 VA opinion adequately addressed the questions posed in the April 2016 Board remand. The April 2016 Board remand requested, in part, an opinion as to whether the Veteran suffered from any kind of cancer, other than esophageal cancer and those identified in 38 C.F.R. § 3.309(e) (2016). The May 2016 VA examiner referred to a PET scan performed in September 2009 which showed a distal mass of the esophagus with mediastinal adenopathy, and a CT scan which showed metatstaic diseases consistent with gastrohepatic, gastroduodenal and peri-celiac adenopathies. The examiner noted cellular histology was consistent with poorly differentiated adenocarcinoma and surgical, pathology, and radiology reports were consistent with the diagnosis of wide-spread metastatic esophageal adenocarcinoma with wide-spread metastatic disease. The examiner did not specifically state whether the Veteran had any other diagnosed cancer and, if so, whether that cancer was etiologically related to the Veteran's active service. The Board finds a remand is necessary so an adequate VA opinion may be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Please return the claims file to the May 2016 VA examiner for an addendum opinion. If the examiner is unavailable, the claims file must be provided to a physician who is qualified to give an opinion as to the nature and etiology of the Veteran's cancer. The examiner is instructed to review the claims file and he or she should indicate in writing that such records have been reviewed. Thereafter, the physician is requested to address the following: (a) Is it at least as likely as not (50 percent or greater) that the Veteran suffered from a form of cancer other that esophageal cancer? (b) For any cancer identified as part of the answer to (a), is it at least as likely as not (50 percent or greater) that the cancer identified is etiologically related to Veteran's active service, to include conceded herbicide exposure therein? The examiner is requested to provide a complete rationale for any opinion expressed based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. The AOJ should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. The AOJ should readjudicate the claim on appeal based upon all additional evidence received. If the benefit sought on appeal is not granted, the appellant and her representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).