Citation Nr: 20021693 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-20 940 DATE: March 26, 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 August 1946 to February 1967. He passed away in September 2015. The appellant is his surviving spouse. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for additional development in December 2017, April 2018 and May 2019. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The May 2019 Board remand asked the RO to obtain VA treatment records through September 2015 and a new VA opinion. The Board’s review indicates that VA treatment records covering the period from July 2013 to September 2015 have been added to the claim file and therefore finds compliance with that remand order. A new VA opinion was obtained in January 2020. The provider found that the Veteran’s T-cell lymphoma was not likely due to either exposure to herbicide agents or exposure to fumes/chemicals while working on the flight line. As a rationale, the provider stated that the exact cause of T-cell lymphoma was unknown and that it was not presumptive with herbicide agent exposure. The examiner then stated that a medical nexus was not found in peer-reviewed literature “to establish a definitive causal relationship” between either herbicide agent exposure or exposure to fumes/chemicals. The Board finds that the opinion is inadequate as it applied the incorrect legal standard. The statement that medical literature did not establish a “definitive causal relationship” appears to require something akin to medical certainty to show a nexus between the Veteran’s claimed exposures and his T-cell lymphoma. The Federal Circuit has held that there is a different between the “as likely as not” adjudication standard and a determination that something is medical or scientifically certain. See Hodges v. Sec’y of Dep’t of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). As the opinion appears to apply an evidentiary standard akin to medical certainty rather than the “as likely as not” standard applicable under VA law and regulation, it is inadequate and remand for a new opinion is required. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion regarding the etiology of the Veteran’s peripheral T-cell lymphoma. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that peripheral T-cell lymphoma is related to the Veteran’s active service, to include the appellant’s contentions regarding exposure to herbicide agents and fumes/chemicals while working on the flight line. The examiner is advised that the fact that presumptive service connection may not be applicable is not dispositive of the issue of nexus and consideration must still be given to the exposure. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran and appellant’s statements regarding exposure to fumes and chemicals on the flight line and in loading and unloading supplies. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.