Citation Nr: 20007545 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 09-38 975 DATE: January 30, 2020 REMANDED Entitlement to service connection for the cause of the Veteran's death, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to September 1974. The Veteran died on May [REDACTED], 2007; and the appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2011, the Board of Veterans’ Appeals (Board) issued a decision denying the claim for service connection for the cause of the Veteran’s death. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an August 2012 Joint Motion for Partial Remand (JMR), which remanded the October 2011 Board decision for re-adjudication consistent with its decision. In April 2013 and February 2017, the Board re-adjudicated the matter, where it was remanded for further development; and in November 2017, the Board issued another decision, once again, denying the appellant’s claim for service connection for the cause of the Veteran’s death. The Veteran appealed the November 2017 Board decision to CAVC, resulting in the July 2019 Memorandum Decision, which remanded the November 2017 Board decision for re-adjudication consistent with its decision. The Board finds that further development is necessary prior to re-adjudication of the claim. Entitlement to service connection for the cause of the Veteran's death, is remanded. The appellant contends that the Veteran’s cause of death is related to his active duty service. Specifically, the appellant argues that the Veteran’s terminal cancer of the stomach was caused and/or aggravated by his service duties aboard the USS Shasta when he worked as an ordnance mechanic and drove a fork lift while handling “live ordnance.” Alternatively, the appellant argues that the Veteran was exposed to herbicides during his service aboard a naval vessel in the waters offshore of Vietnam. As an initial matter, the Board notes that the Veteran’s military records reflect that he completed Nuclear Weapons Transshipment School from September 16-26, 1973; and his service treatment records (STRs) reflect that he was stationed aboard the USS Shasta from December 1972 to September 1974. In July 2017, the appellant was provided a VA medical opinion to assess the current nature and etiology of the Veteran’s cause of death, in response to the Board’s February 2017 remand. Upon review, the examiner provided an unfavorable opinion; partly rationalizing that there was no evidence that between 1972 and 1974 the USS Shasta stored or moved nuclear weapons, which the Board repeated and partly relied upon in its November 2017 denial. However, CAVC determined that the Board erred in its November 2017 decision when it failed to ensure compliance with CAVC’s 2012 remand under the JMR, pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, CAVC found that the July 2017 VA examiner’s conclusion that “there is no evidence that between 1972 and 1974 the USS Shasta stored or move nuclear weapons…” was in direct contradiction with the 2012 JMR that specifically provided that “it is more likely than not that USS Shasta carried at least some form of nuclear ordinance…” See CAVC Decision, pp. 4-5. Based on the Board’s partial reliance on this contradictory statement, CAVC concluded that the Board failed at its obligation to ensure the appellant’s entitlement to substantial compliance. Therefore, as the July 2017 VA medical opinion proves to be inadequate for adjudicative purposes, the Board finds that a remand is warranted to obtain an addendum opinion that adequately complies with all evidence of record, to include the full benefit of the 2012 JMR. Accordingly, in compliance with CAVC’s Memorandum Decision, a remand is necessary to adequately address the matters discussed above. The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom the Veteran has received treatment for his stomach cancer, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, request an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s cause of death. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that exposure to nuclear weaponry onboard the USS Shasta during the Vietnam War, by moving possible nuclear components or weapons, caused or materially contributed to the Veteran’s terminal gastric cancer with metastasis to the liver. Please note: The 2012 JMR issued by CAVC specifically found that “it is more likely than not that USS Shasta carried at least some form of nuclear ordinance…,” and discussion of this must be addressed in its opinion. 3. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s and/or appellant’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran and appellant are competent to report symptoms, and that their reports must be considered in formulating the requested opinion. 4. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of   medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, Associate 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.