Citation Nr: 21064112 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-28 150 DATE: October 19, 2021 REMANDED The claim for service connection for a malignant brain tumor, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1967. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran died in January 2018. The appellant is his surviving spouse, who has been properly substituted for this appeal. The claim for service connection for a malignant brain tumor, to include as due to exposure to herbicide agents, is remanded. By a July 2020 decision, the Board granted a claimed total disability rating based on individual unemployability due to service-connected disabilities (TDIU), but it denied entitlement to service connection for a malignant brain tumor, both considered in substitution for accrued benefits purposes. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in June 2021 the Court approved a Joint Motion for Partial Remand (Joint Motion) vacating that portion of the Board's decision which denied service connection for a malignant brain tumor (styled as "brain cancer") and remanding the case for action consistent with the Joint Motion. (The Joint Motion and the Court left undisturbed the Board's grant of TDIU.) The parties to the Joint Motion found that the Board had provided inadequate reasons and bases for its denial of service connection for a malignant brain tumor because the Board had not adequately explained why it had not obtained a records-based examination and opinion addressing whether the malignant brain tumor was causally related to the Veteran's conceded exposure to herbicide agents (e.g., Agent Orange) while stationed in Vietnam during service. As the Board noted in the now vacated decision, a malignant brain tumor is not a disease for which a presumption of service connection is established based on presumed exposure to herbicide agents in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). However, the appellant had expressed her belief that the Veteran's malignant brain tumor was causally related to his exposure to herbicide agents. The parties to the Joint Motion emphasized the "low threshold" for the requirement of evidence indicating a nexus to service to support the necessity of a VA examination addressing a question of a causal link to service under McLendon v. Nicholson, and the Board's failure to address whether the appellant's contention and other evidence of record, taken together, met that low threshold. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board had noted that the record indicated the Veteran was diagnosed with a malignant brain tumor in November 2017, mere months prior to his death in January 2018, and there was no indication years prior to that time, including not in service or proximate to service, of a malignant brain tumor. The Board notes that the appellant's opinion does not constitute competent evidence of a link between the Veteran's presumed exposure to herbicide agents in service and his development of a malignant brain tumor decades later. Such a question is beyond lay competence, and the appellant has not been shown to possess the requisite expertise or knowledge to address it. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the parties to the Joint Motion agreed that the Board's decision should be vacated in order to address whether the low threshold under McLendon was met, and hence whether a records-based examination was warranted to address whether the Veteran's malignant brain tumor was at least as likely as not causally linked to the Veteran's presumed exposure to herbicide agents in service. Inasmuch as the Veteran undoubtedly could have found a private practitioner to provide a nexus opinion supporting obtaining a VA examination if time had allowed, and to avoid further appellate litigation, the Board concludes that remand for an examination is warranted. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records, with appropriate authorization and assistance from the appellant, including in particular any related to diagnosis or treatment of a malignant brain. If any records cannot be obtained, the appellant and her representative should be appropriately notified. 2. Thereafter, obtain a records-based medical opinion by a qualified clinician addressing the likelihood that the Veteran's malignant brain tumor was causally related to his presumed exposure to herbicide agents in service. The claims file should be carefully reviewed. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's presumed exposure to herbicide agents in service caused or significantly contributed to his development of a malignant brain tumor. A complete explanation should be provided for any opinion expressed. (Continued on the next page) 3. Then, readjudicate the appealed claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.