Citation Nr: 20003502 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 15-21 076 DATE: January 16, 2020 REMANDED Entitlement to dependency indemnity compensation (DIC), based on service connection for the cause of the Veteran’s death is remanded. INTRODUCTION The Veteran served on active duty from February 1968 to May 1970. The Veteran died in September 2006, and the appellant is his surviving spouse. When this case was previously before the Board in February 2019, the above-noted issue was remanded for additional development. The case has since been returned to the Board for further appellate review. REASONS FOR REMAND Although further delay is unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, the Board finds substantial compliance with the February 2019 remand instructions has not been achieved. When this case was previously before the Board, the RO was instructed to contact the scanning vendor to obtain re-scanned images of three service treatment records (STRs), which were illegible. The RO was also instructed to obtain a comprehensive medical opinion addressing the Appellant’s assertions that the Veteran’s death was consequentially related to his military service. Since the Board’s February 2019 remand, the RO has not obtained legible copies of the above-noted STRs, and has also not provided any indication that the presently associated STRs are the best copy available. The RO obtained a medical opinion from a primary care physician at the Milwaukee VAMC in August 2019. Following a review of the Veteran’s file, the examiner concluded it would be speculative to conclude the Veteran’s hepatitis C was incurred in or related to an incident in military service. In his review, the examiner noted several risk factors for the transmission of hepatitis C, including blood exposure, intervenous drug use, tattoos and body piercings, high risk sexual activity, and family history of hepatitis C. The examiner also noted the Appellant’s reports that she had not witnessed him engage in any risky lifestyle behaviors during her time with him. The examiner went on to state the Veteran’s records were silent regarding his lifestyle between 1970 and 1975, apparently asserting the Veteran’s hepatitis C may have been contracted during that period of his life. In this respect, the examiner appeared to have speculated, as to a potential risk factor exposure following service, which there is no evidence to support. In this respect, the Board notes the only confirmed risk factor exposures in this case appear to have occurred in service. The examiner also wholly failed to explain why it would be specious to provide an opinion in this case, based on the evidence of record. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the above-noted deficiencies, the Board finds substantial compliance with the February 2019 remand instructions has not been achieved. As such, a remand is necessary. Accordingly, this case is REMANDED for the following actions: 1. Re-scan the three illegible pages of STRs and associate these with the claims file. The three illegible pages are included in the electronic claims file in STRs with a receipt date of July 20, 1970 and are located at pages 48, 63, and 69 of this document. If it is determined that the best copies of these pages are already in the claims file, then this should be noted in the record and communicated to the appellant. (Continued on the next page)   2. After obtaining legible scans of the above-noted STRs, if available, request a records review and medical opinion from a physician specializing in infectious disease transmission. In this regard, the physician must state whether any degree of the Veteran’s hepatitis C at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. The examiner is asked to specifically consider the Veteran’s STRs, official military personnel file (OMPF), and the previously obtained medical opinions addressing the relationship between his hepatitis C and his military service. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.