Citation Nr: 1806238 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-24 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and A.P. ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran had active duty from February 1969 to June 1971. This included service in the Republic of Vietnam (RVN). He died in May 2010. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Service connection for the Veteran's cause of death was denied therein. The Appellant appealed this determination. In May 2013, she and her daughter-in-law A.P. testified before the undersigned at the RO. The Board remanded this matter for additional development in June 2014 and November 2014. Review of the claims file at this time unfortunately reveals that adjudication cannot yet proceed. Another REMAND for additional development instead is needed. REMAND If VA obtains a medical opinion, the duty to assist requires that it be adequate so adjudication is fully informed. Barr v. Nicholson, 21 Vet. App. 303 (2007). This includes considering relevant medical history, having accurate factual premises, and supporting the conclusion made with a reasoned explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994); Reonal v. Brown, 5 Vet. App. 458 (1993). The Board's November 2014 remand included directives, which were crafted to ensure adequacy, for medical opinions concerning the Veteran's death. At least substantial compliance with these directives is required. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). Not even this level of compliance was achieved, however. The Board directed that an opinion be obtained as to whether it is at least as likely as not that the Veteran's service-connected disabilities (all of which concerned residuals of gunshot wounds to the arms) caused, materially contributed to, or hastened his death. This was to include consideration of these disabilities individually and collectively and of whether they involved active processes affecting vital organs. Mere recitation of the question asked in statement form specifically was called out as inadequate, as a detailed supporting explanation instead was requested. In response, a negative opinion was rendered as to causation for the disabilities collectively. Material contribution and hastening were not addressed, and neither was any disability individually. The sole explanation provided was that there was no supporting medical evidence. With respect to active processes affecting vital organs, the sole explanation provided was recitation of the question asked in statement form. Additionally, the Board directed that an opinion be obtained as to whether it is at least as likely as not that the Veteran's nasopharyngeal cancer and oropharyngeal cancer was related to his active duty. This was to include consideration of a direct relationship between them and his herbicide exposure during active duty, presumed given his service in the RVN. May 2013 testimony from the Appellant that his private physician suggesting there could be such a relationship was to be addressed. Relevant discussion points in this regard were highlighted. Finally, a detailed supporting explanation once again was requested. In response, a negative opinion was rendered. The explanation provided essentially was that there was no supporting medical evidence or documentation. Part of the question asked was recited in statement form. The Appellant's testimony was not addressed. Neither were any of the discussion points deemed relevant. Both of the opinions, in sum, are inadequate. Without another addendum VA medical opinion, the Board cannot perform a fully informed adjudication. Arrangements for such an addendum thus must be made. It shall be rendered by a medical professional without previous involvement in this matter, if possible. By doing so, it is hoped that greater attentiveness to the Board's directives concerning the medical opinions will be achieved. These directives as set forth herein are largely the same as those in the November 2014 remand. The only substantive difference indeed is that, along with the Appellant's testimony, a July 2010 letter from the Veteran's private Dr. M.N. indicating that herbicide exposure "could certainly have contributed to his cancer diagnos[e]s" shall be taken into account. Based on the above, a REMAND is directed for the following: 1. Arrange for a qualified VA medical professional, if possible without previous involvement in this matter, to render an addendum medical opinion. This professional shall review the claims file, paying particular attention to the Board's remands and the previous VA medical opinions rendered, and then answer the following: a. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected disabilities (residuals of a gunshot wound to the right arm with complete lesion of the radial and ulnar nerve; residuals of a gunshot wound to the right shoulder involving Muscle Group III; residuals of a gunshot wound to the left arm involving Muscle Group VIII; residuals of a gunshot wound to the right arm involving Muscle Group V; residuals of gunshot wound, deep scars right upper and right lower arm, right middle finger, left lower arm and left arm; residual of a gunshot wound, painful scar of the right upper arm; and residuals of a gunshot wound, scar of the right lower arm and right shoulder), caused, materially contributed to, or hastened his death? In answering, the medical professional shall address these disabilities individually and collectively. Whether they involved active processes affecting vital organs that produced debilitating effects and general impairment of health to an extent that rendered the Veteran materially less capable of resisting the effects of hypotension, his cause of death, also shall be addressed. b. Is it at least as likely as not that the Veteran's nasopharyngeal cancer and/or oropharyngeal cancer were/was related to his active duty, whether via his presumed herbicide exposure from serving in the RVN or otherwise? In answering, the medical professional shall address whether there is a direct relationship between such presumed exposure and these cancers, as an opinion based solely on VA not having recognized a relationship or the cancers not having manifested within one year after the Veteran's discharge is inadequate. The Appellant's May 2013 testimony and a July 2010 letter from private Dr. M.N. concerning a direct relationship shall be addressed. Relevant discussion points in this regard include why certain medical literature is persuasive or unpersuasive, other risk factors the Veteran may have had for developing these cancers, and whether they manifested in an unusual manner. The medical professional is advised for both opinions that mere recitation of the Board's question in statement form is inadequate. Instead, a detailed and reasoned explanation shall be provided in support of each opinion. A copy of, or citation to, any medical literature discussed also shall be supplied. Each of the aforementioned actions shall be documented by the medical professional in a report to be placed in the claims file. 2. Then, readjudicate this matter. If the claim on appeal remains denied, issue a supplemental statement of the case (SSOC). Allow the Appellant and her representative time to respond to a SSOC before processing for return to the Board. No action is required of the Appellant until she is notified by VA. Yet she is advised that she has the right to submit additional evidence and/or argument, whether herself or through her representative. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. Indeed, all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252 (2012). This remand is in the nature of a preliminary order and does not constitute a decision on the merits of this matter by the Board. 38 C.F.R. § 20.1100(b) (2017).