Citation Nr: 21062793 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-39 710A DATE: October 12, 2021 REMANDED Entitlement to service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1963 to November 1966, June 1982 to December 1982, and February 2003 to December 2003. 1. Entitlement to service connection for the Veteran's cause of death is remanded. This matter returns to the Board of Veterans' Appeals (Board) after an April 2021 Board decision remanded the matter of service connection for the cause of the Veteran's death for further development. The Board finds that the April 2021 remand directives were not substantially complied with and the matter must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). Here, the Board notes that in its last remand explicitly instructed the Regional Office (RO) to acquire a VA opinion that adequately explained the development of the Veteran's cause of death, namely his development of clival chordoma prior to 2003, or his last period of active service. In the Remand directives, the Board explicitly noted that such opinion must address whether there is "clear and unmistakable" evidence of the existence of the condition prior to service, and whether the condition "clearly and unmistakably" was not aggravated by such service. The Board finds that a close review of the April 2021 VA examination opinion reveals that the conclusions and rationale provided by the VA examiner are inadequate upon which to decide the claim. Specifically, while the VA examiner concluded that the Veteran's clival chordoma clearly and unmistakably predated his last period of active service, the opinion failed to also find that such condition clearly and unmistakably was not aggravated by the Veteran's active service. In addition to the lack of finding regarding aggravation, the entirety of the examiner's rationale was ostensibly based on a "as likely as not" rationale, and not to the certainty in which is required for a finding of a preexisting condition. As such, the Board must find the opinion to be inadequate, and remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an expert medical opinion from an oncologist to address the cause of the Veteran's death. The examiner is to be provided access to the Veteran's entire electronic claims file and should specify in the report that these records have been reviewed. The examiner must then address: (a) Is there clear and unmistakable evidence that the Veteran's clival chordoma preexisted any period of active duty service, specifically from May 1963 to November 1966, June 1982 to December 1982, and February 2003 to December 2003? In addressing the onset of the condition, the examiner is asked to consider and discuss the May 2020 examiner's comments that clival chordoma is a slow growing tumor and, if possible, discuss the growth rate of the disease, as applicable to the facts of the present claim. In other words, the examiner must address if the rate of growth of the Veteran's clival chordoma can be used to determine the approximate onset date. (b) If clival chordoma preexisted any period of active service, the examiner is asked to opine whether there is clear and unmistakable evidence that the preexisting disease did not permanently increase in severity as a result of any subsequent period of active service. The examiner must identify the medical facts and principles used to determine whether the increase (if there is one) is due to service or the natural progression of the condition. (c) If the Veteran's clival chordoma is not found to have clearly and unmistakably had its onset prior toa period of active service, is it as likely as not (a fifty percent probability or greater) that the Veteran's clival chordoma had its onset during any of the Veteran's periods of active service, including from May 1963 to 1966, June 1982 to December 1982, or February 2003 to December 2003, or within one year of separation of any of these periods? (d) In providing the requested the opinions, the examiner must consider and discuss any conflicting medical evidence or opinions of record. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must provide an explanation why one cannot be provided. In this case, the examiner must clearly state that (1) the examiner considered all procurable and assembled data before stating that an opinion cannot be reached and (2) the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. The statement that an opinion cannot be provided without resort to speculation must be based on a lack of knowledge among the "medical community at large" and not a limitation of the individual examiner, be it based on lack of expertise, insufficient information, or unprocured testing. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.