Citation Nr: 1805078 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-20 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for brainstem glioma. WITNESSES AT HEARING ON APPEAL The Veteran and appellant ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to April 1974. He died in September 2015. The appellant is the Veteran's surviving spouse and has been substituted as the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In August 2014, the Veteran and the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a March 2016 letter, the RO recognized the appellant as the substitute claimant in the place of the Veteran. In March 2016, the Board remanded this matter for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. In its March 2016 remand instructions, the Board requested that an opinion be provided regarding the Veteran's brainstem glioma. Specifically, the Board requested that the examiner review the Veteran's claims file, which included newly declassified information regarding the Veteran's in-service exposure to sarin, and also explain and/or reconcile a February 2014 VA opinion and a September 2014 letter from Dr. Breston. In August 2016, an addendum opinion was obtained from the VA physician who provided the February 2014 opinion. The August 2016 opinion, however, did not provide the opinions requested by the Board in its March 2016 remand. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an additional remand of this issue consistent with the prior remand instructions is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from an Oncologist (M.D.) regarding the nature and etiology of the Veteran's brainstem glioma. The examiner must review the claim file, including a copy of this and the Board's prior REMANDS, and must note that review in the report. The examiner should set forth a complete rationale for all conclusions reached, to include a discussion of pertinent medical literature. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brainstem glioma was related to his active duty service, including his in-service exposure to sarin. In providing this opinion, the examiner must reconcile the findings in the February 2014 VA examination report and the September 2014 letter from Dr. Breston. The Board notes that the term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The rationale for all opinions expressed must be provided. If the examiner is unable to render an opinion without resort to mere speculation, it should be indicated and explained why an opinion cannot be reached. 2. After ensuring compliance with the development requested above, readjudicate the claim. If any decision is adverse to the Appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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) (2017).