Citation Nr: 21061721 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 12-08 719 DATE: October 5, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1966 to May 1969 and from February 1977 to August 1988, to include service in the Republic of Vietnam during the Vietnam Era. He died in April 2010. The Appellant is his surviving spouse. Most recently, the Board remanded the Appellant's claim for additional development in February 2019. Thereafter, the Board denied the claim in a March 2020 decision. The Appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In an Order dated in February 2021, and pursuant to a February 2021 Joint Motion for Remand (Joint Motion), the Court vacated the Board's March 2020 decision and remanded the issue to the Board for development as stipulated in the Joint Motion. In the February 2021 Joint Motion endorsed by the Court, the parties agreed that remand was required because the Board erred in failing to ensure compliance with its own prior remand order in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the February 2019 Board remand directed the Agency of Original Jurisdiction (AOJ) (in pertinent part) to obtain an addendum medical opinion. Although a VA medical opinion was provided in December 2019, the parties agree it was inadequate because: it failed to discuss the evidence in favor of the Appellant's claim (a January 2012 private opinion and medical articles received in March 2014); it failed to clearly address two separate head injuries sustained by the Veteran in service; it employed the wrong standard (by using the improper "conclusive" standard, rather than the appropriate "at least as likely as not" standard) in the opinion; and was provided by a nurse practitioner rather than a physician. Therefore, remand to obtain a new medical opinion is necessary. Prior to arranging for the new VA medical opinion, however, the Board notes that in September 2021, the Appellant submitted another private medical opinion from Dr. MMK. Dr. MMK cited to several medical studies to support his opinion; however, copies of these studies are not currently of record. On remand, he should be requested to provide copies of the medical studies that he cited in his September 2021 opinion. Thereafter, the VA medical opinion obtained on remand must address this newly-obtained evidence. The matter is REMANDED for the following action: 1. Request that Dr. MMK provide copies of the medical studies cited in his September 2021 opinion. 2. After the above development is completed, obtain a VA medical opinion from the appropriate physician (to comply with the Court's Joint Motion, the opinion must be provided by a physician) as to the etiology of the Veteran's fatal glioblastoma. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect such a review took place. The examiner must opine whether this disability was at least as likely as not related to an in-service injury, event, or disease, including the Veteran's in-service exposure to certain herbicide agents (including dioxin), a September 1968 traumatic brain injury with concussion, and/or a December 1968 shrapnel injury to the face. To comply with the Court's Joint Motion, the opinion must discuss the materials submitted in support of the claim, to include the January 2012 private medical opinion, the articles submitted along with the March 2014 Appellate Brief, and the September 2021 private medical opinion and medical studies cited in this opinion (if they can be accessed). (Continued on the next page) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.