Citation Nr: 21064818 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-05 766 DATE: October 21, 2021 REMANDED Entitlement to service connection for colon cancer, to include as due to exposure to an herbicide agent and/or to asbestos, is remanded. Entitlement to service connection for liver cancer, to include as due to exposure to an herbicide agent and/or to asbestos, is remanded. Entitlement to service connection for seizure disorder, to include as due to exposure to an herbicide agent and/or to asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1968 to October 1969, during part of which service the Veteran's ship was deployed to the inland and/or coastal waters of the Republic of Vietnam. The Veteran passed away in November 2013 and the Appellant is his surviving spouse and substituted claimant in this appeal. 1. Entitlement to service connection for colon cancer, to include as due to exposure to an herbicide agent and/or to asbestos. 2. Entitlement to service connection for liver cancer, to include as due to exposure to an herbicide agent and/or to asbestos. 3. Entitlement to service connection for seizure disorder, to include as due to exposure to an herbicide agent and/or to asbestos. Once more, development undertaken after the Board's Remand is not in substantial compliance with its directives. The June 2019 and January 2021 Board Remands specified that opinions for the claims for service connection for colon cancer and for liver cancer be rendered by an oncologist. The June 2019 Remand directed, "Every effort to have an oncologist to render the requested opinions is necessary. If such specialist is not available, that must be explained in the record prior to returning the appeal" However, after the January 2021 Remand repeated those directives, VA opinions were once again produced by a Doctor of Family Medicine, holding the degree of D.O. (Doctor of Osteopathic Medicine). Moreover, the Board could find no explanation in the opinions or in the record why an oncologist was unavailable. The Remand further directed for the claim of service connection for seizure disorder the file be made available to a neurologist who has not previously reviewed the file and, again, every effort to have a neurologist to render the requested opinions is necessary and, if not available, that must be explained in the record prior to returning the appeal. However, although the requested opinions addressing the 3 claims were produced in July 2021, they were produced by another Doctor of Family Medicine. The Agency of Original Jurisdiction (AOJ) in August 2021 then issued its Supplemental Statement of the Case (SSOC). Nonetheless, a new series of opinions inexplicably appeared afterward in the record, associated with the file in October 2021 and, although rendered by an oncologist who addressed the colon and liver cancer claims, there are no opinions by a neurologist addressing the seizure claim. Therefore, it appears from the foregoing that the October 2021 opinions, although complying with the Remand directives for colon and liver cancers, were issued after the August 2021 SSOC, the AOJ has issued no rating decision addressing the above claims on appeal and has issued no SSOC informing the Veteran of the completion of development of these claims and the Board consequently as yet has no jurisdiction over those claims. The July 2021 opinions regarding service connection for seizure disorder, having been produced not by a neurologist as directed by the Board but by a doctor of family of medicine, as happened once before, are therefore inadequate. As a Remand by the Board confers on a claimant, as a matter of law, the right to compliance with the Board's prior remand requests, those directives concerning the claim for service connection for seizure disorder remain as yet unfulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the claim for service connection for seizure disorder is remanded for the opinions of a neurologist responsive to the directives set forth below. Only after those opinions have been rendered and associated with the claims file, to preserve the Veteran's due process rights in all 3 claims, the AOJ should then undertake initial review and adjudication of the evidence as indicated. See generally 38 C.F.R. § 19.31(b). If the benefits sought are not granted, the AOJ should issue an SSOC and proceed with any further usual and appropriate appellate steps. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for seizure disorder, to include as due to exposure to an herbicide agent and/or to asbestos, at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Arrange for the claims file and a copy of this remand to be made available to a neurologist who has not previously reviewed the file. Every effort is required to have a neurologist render the requested opinions. If such a specialist is not available, that must be explained in the record prior to returning the appeal. In reviewing the file, the neurologist is requested to consider specifically the Veteran's post-service medical records; the September 1980 VA medical examination report, in which an examiner diagnosed seizures possibly due to chemical exposure; the Appellant's lay statements indicating onset of the Veteran's seizures in June 1970; and the VA medical opinions on file. The neurologist should specifically discuss this evidence in the rationales supporting the opinions produced. The neurologist is also advised that the Veteran is presumed to have been exposed to herbicide agents and asbestos during his service. After examining the file, the neurologist is requested to address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's seizure disorder is caused by, the result of or etiologically related to exposure to an herbicide agent during active service? (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's seizure disorder is caused by, the result of or etiologically related to asbestos exposure during active service? (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's seizure disorder had its onset during active service or within one year of separation from active service? (d) Regardless of any regulatory presumptive service connection due to exposure to an herbicide agent which may or may not be applicable to this claim, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's seizure disorder on a direct basis was incurred during active service or is caused by an event, injury, illness, or disease occurring in active service? The examiner is requested to use in the opinions the exact language and terminology as stated above in the opinion questions, as deviation from such language and terminology or the use of equivocal language such as "not due to" and similar phrases have been held on appeal to the Board's reviewing court to be an incorrect evidentiary standard for VA adjudication purposes. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. The examiner is also requested to discuss the Veteran's and his wife's (the Appellant's) testimony at the November 2012 Decision Review Officer hearing and their April 1991, May 2009, June 2011, June 2012, October 2012 (4 statements), March 2013, July 2015, August 2015, September 2015, December 2015, January 2016, August 2016, November 2020, and November 2021 lay statements, as well as the Veteran's reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiner to note that opinions rendered without discussing such lay evidence of the Veteran and the Appellant as it pertains to the claim for seizure disorder will be deemed insufficient for VA adjudication purposes. 3. Only after completing the above development and any other development indicated, adjudicate the above 3 claims in this Remand. If the benefits sought are not granted, provide the Veteran and his representative with an SSOC and allow an appropriate opportunity to respond before returning the case to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.