Citation Nr: 20040366 Decision Date: 06/12/20 Archive Date: 06/12/20 DOCKET NO. 14-20 740 DATE: June 12, 2020 ORDER As new and material evidence has been received, the claim for entitlement to service connection for brainstem glioma is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for brainstem glioma is remanded. FINDINGS OF FACT 1. In a final July 2008 rating decision, the RO denied entitlement to service connection for brainstem glioma; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final July 2008 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for brainstem glioma. CONCLUSIONS OF LAW 1. The July 2008 rating decision that denied the claim for service connection for brainstem glioma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for brainstem glioma. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to April 1974. He passed away in September 2015. The appellant is the Veteran’s surviving spouse and been substituted as the appellant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran and the appellant testified during a videoconference hearing before the undersigned. A transcript is of record. In a March 2016 letter, the RO recognized the appellant as the substitute claimant in place of the Veteran. In March 2016 and January 2018, the Board remanded this matter for further development. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been received sufficient to reopen the claim for entitlement to service connection for brainstem glioma. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Additionally, 38 C.F.R. § 3.156 (b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161 - 62 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a July 2008 rating decision, the RO denied the Veteran’s original claim for service connection for brainstem glioma, because the evidence did not show that the Veteran’s brainstem glioma was incurred in or caused by his service. That decision is final. Since the Veteran’s last prior final denial in July 2008, the record includes a September 2014 private medical opinion in which Dr. J. B. opined that it was more likely than not that the Veteran’s military service caused his medical conditions. The record also includes a July 2016 document listing the details of the Veteran’s in-service exposure to chemical or biological agents during service. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The September 2014 private medical opinion and July 2016 document will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for brainstem glioma is reopened. REASONS FOR REMAND 1. Entitlement to service connection for brainstem glioma is remanded. In its January 2018 decision, the Board instructed the RO to obtain a VA opinion from an oncologist regarding the nature and etiology of the Veteran’s brainstem glioma. While a December 2019 VA opinion was completed by an oncologist, his positive nexus opinion was based on the premise that the Veteran had in-service exposure to sarin and did not address the Veteran’s actual exposure to methylscopolamine, atropine, and CS gas. The record shows that the RO noted this deficiency and attempted to obtain an addendum opinion from the oncologist who provided the December 2019 VA opinion. However, the February 2020 VA addendum opinion was completed by a different medical provider who was not an oncologist. As such, an adequate VA medical opinion regarding the nature and etiology of the Veteran’s brainstem glioma has not been obtained from an oncologist. As such, a remand is required as the RO did not comply with the Board’s remand directives and the medical opinions are inadequate to determine the nature and etiology of the Veteran’s brainstem glioma. See Stegall v. West, 11 Vet. App. 268, 270 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The matters are REMANDED for the following action: Obtain an opinion from the oncologist (M.D.) who provided the December 2019 VA medical opinion, or, if not available, another appropriately qualified oncologist (M.D.). The examiner must review the claims file, including a copy of this and the Board’s prior REMANDS, and must note that review in the report. The oncologist (M.D.) should set forth a complete rationale for all conclusions reached, to include a discussion of pertinent medical literature. The oncologist (M.D.) should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s brainstem glioma was related to his in-service exposure to methylscopolamine, atropine, and ortho-chlorobenzalmalononitrile. In providing this opinion, the examiner must reconcile the findings in the February 2014 VA examination report, the September 2014 letter from Dr. J. B, and the March 2017 VA examination report. The Board notes that the term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of that conclusion as it is to find against it. The rationale for all opinions expressed must be provided. If the examiner is unable to render an opinion without resorting to mere speculation, it should be indicated and explained why an opinion cannot be reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.