Citation Nr: 1808161 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13- 03 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and Friend ATTORNEY FOR THE BOARD S. Solomon, Associate Counsel INTRODUCTION The Appellant is the widow of the veteran who served on active duty from July 1952 to July 1954; he died in February 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the St. Paul, Minnesota RO, which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Subsequently, in a substantive appeal received in January 2013, the appellant raised the claim of entitlement to DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151. This issue was addressed in a supplemental statement of the case (SSOC) issued in November 2013 by the Phoenix, Arizona RO. The Appellant and a friend testified at a videoconference hearing before a Veteran Law Judge (VLJ), who is no longer with the Board, in On April 17, 2014, and transcript of the hearing is of record. In June 2017, the Veteran was informed that the VLJ who conducted the hearing is not available to decide the claim and that he is entitled to request another hearing before another VLJ. The Veteran has not requested another hearing. The Board previously remanded this claim in February 2015 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 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 The Board regrets further delay, but additional development is necessary before adjudicating this claim. Pursuant to the Board's remand directive, a medical opinion from an oncologist was obtained in August 2015. The Board finds that the examiner did not provide a complete rationale to support the conclusion "there was no evidence for any failure on the part of VA to timely diagnose" the Veteran's colon cancer. The examiner merely stated that the current medical guidelines do not require a colonoscopy in less than 10 years based on diagnosis of diverticulosis. The examiner's opinion, however, did not provide further explanation to address Appellant's contention that diverticular disease and colon cancer have similar symptomatology, which warrants closer observation including more frequent colonoscopies and CAT scans. Thus, a remand is necessary to obtain a complete medical opinion. 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. The claims file should be returned to the August 2015 VA examiner or if that examiner is not available, to a similarly qualified examiner for supplemental opinion that answers the following question: Did the VA fail to timely diagnose and properly treat the Veteran's colon cancer? If VA failed to timely diagnose and properly treat the Veteran's colon cancer, was the failure due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? If VA failed to timely diagnose and properly treat the Veteran's colon cancer, did the failure proximately cause continuance or natural progression of the disease? If so, was continuance or natural progression of the disease a reasonably foreseeable consequence of VA's failure to timely diagnose and properly treat the Veteran's colon cancer? The examiner's opinion should consider and specifically address the Appellant's contention that a November 2004 colonoscopy revealed abnormal findings and that VA should have ordered frequent colonoscopies or CAT scans in light of the Veteran's diagnosis of diverticular disease, which makes diagnosis of cancer more difficult. The examiner must provide a complete explanation for his responses, citing to evidence in the claims file when necessary. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Ensure that the requested medical opinion is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the oncologist for amendment. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the decision is adverse to the Appellant, issue a supplemental statement of the case and allow the applicable 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). _________________________________________________ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).