Citation Nr: 20006715 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 14-10 079 DATE: January 27, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to burial benefits and a plot allowance is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to July 1968, including service in the Republic of Vietnam. The Veteran died in July 2011, and the Appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant filed a notice of disagreement in August 2013 and a statement of the case was issued in December 2013. The Appellant filed a VA Form 9 in March 2014 and appeared before the undersigned in October 2016 for a Board hearing. The Board remanded these claims in October 2018 and May 2019. As discussed further below, the Board’s directives have not been substantially completed, and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Appellant contends that the Veteran’s exposure to herbicides in service caused his pancreatic cancer, which ultimately led to his death. In May 2019, the Board remanded the claim of service connection for the cause of the Veteran’s death, inter alia, for a medical opinion addressing the relationship, if any, between the Veteran’s fatal pancreatic cancer and his conceded exposure to herbicides in the Republic of Vietnam. In offering that opinion, the examiner was to specifically comment on the scientific, medical, and statistical data mentioned in the May 1990 report prepared by Admiral Zumwalt and the scientific, medical, and statistical data mentioned in the “Veterans and Agent Orange Update 2014.” In a September 2019 opinion, a VA physician opined that it is less likely than not that the Veteran’s pancreatic cancer incurred in or was caused by service, to include exposure to herbicides. As rationale, the physician referenced the prior February 2019 VA opinion and literature and concluded that the evidence of record does not support an association between pancreatic cancer and Agent Orange exposure. Instead, the physician opined that the Veteran’s pancreatic cancer was a chronic disease diagnosed by pathology. In support of this opinion, the physician cited to and quoted from the National Academies of Medicine Veterans and Agent Orange Update (2018). The Board finds the September 2019 VA opinion is not fully responsive to the directives specified in the May 2019 Board remand. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall, 11 Vet. App. at 271. To that end, while the Board appreciates the VA physician’s discussion of the prior February 2019 VA examination and literature, the Board, again, requested that the physician comment on the articles provided by the Appellant. Specifically, the physician was asked to comment on the May 1990 report prepared by Admiral Zumwalt and the scientific, medical, and statistical data mentioned in the “Veterans and Agent Orange Update 2014.” The physician did not comment on those materials, let alone acknowledge that he reviewed them. In light of the foregoing, the claim must be remanded for an addendum opinion with comment on the two articles discussed above to ensure substantial compliance with the May 2019 Board remand directives. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence...is essential for a proper appellate decision”); 38 C.F.R. § 3.159; Stegall, 11 Vet. App. at 271. 2. Entitlement to burial benefits and plot allowance is remanded. The Board notes that the claim for burial benefits and plot allowance is inextricably intertwined with the issue of service connection for the cause of the Veteran’s death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of the burial benefits and plot allowance claim must be deferred pending resolution of the cause of death claim. The matters are REMANDED for the following action: 1. Obtain an addendum to the September 2019 VA medical opinion by the same examiner or another qualified physician, if he is not available. The claims folder must be made available to and reviewed by the examiner. The reviewing medical professional is asked to address the following: Is it at least as likely as not (i.e., a 50-50 chance) that this Veteran’s fatal adenocarcinoma of the pancreas was related to his exposure to the herbicide agents (Agent Orange) used in Vietnam, given his medical history, family history, and the absence or presence of other risk factors? ****In responding to the above question, the medical professional is asked to review (1) the scientific, medical, and statistical data mentioned in the May 1990 report prepared by Admiral Zumwalt; (2) the scientific, medical, and statistical data mentioned in the “Veterans and Agent Orange Update 2014”; and (3) any additional pertinent literature on the subject, and then to address whether there is a medically sound basis to attribute the Veteran’s fatal adenocarcinoma of the pancreas to his exposure to the herbicide agents (Agent Orange) used in Vietnam. ****Please Note: the Board is cognizant that there is no presumption of service connection for pancreatic cancer due to exposure to herbicide agents (Agent Orange) used in Vietnam. The question here is, what is the likelihood that this Veteran’s pancreatic cancer is related to his exposure to herbicide agents, given his medical history, family history, absence or presence of other risk factors, etc. (Continued on the next page)   2. After the above development, and any additionally indicated development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to burial benefits and plot allowance. If the benefits sought are not granted to the Appellant’s satisfaction, send the Appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.