Citation Nr: 21068127
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 16-28 232
DATE: November 9, 2021

REMANDED

Entitlement to service connection for the cause of death is remanded.

REASONS FOR REMAND

The Veteran had active service from August 1954 to December 1970. His service included a tour in the Republic of Viet Nam (RVN) from July 1969 to July 1970.

The Veteran died in October 2013, and the appellant is his surviving spouse. She perfected an appeal from a June 2014 rating decision that denied her claim. She appeared at a Board hearing via video conference before the undersigned in June 2016. A transcript of the hearing is of record. See 09/26/2019 Hearing Transcript.

As of the date of the hearing the appellant's representative had not received a requested copy of the Veteran's claims file. The Board provided a copy via CD/DVD to the attorney in July 2021. See 07/21/2021 Correspondence. The Board acknowledges delays in the mailing of Board correspondence due to the pandemic. Hence, the Board has delayed action on this case beyond 90 days from the date of the transmittal letter. To date, no additional argument or evidence has been received from the appellant. 

Entitlement to service connection for the cause of death is remanded.

The initial death certificate noted pancreatic cancer as the sole cause of the Veteran's death, with Agent Orange (AO) exposure noted as a contributing cause. See 11/27/2013 Death Certificate. An updated certificate was issued in 2015 that added DM [diabetes mellitus] to the previously noted AO exposure as a contributing cause. See 03/12/2015 Death Certificate. The appellant asserts that the Veteran's pancreatic cancer was due to his presumed exposure to AO during his tour in RVN or, in the alternative, that his pancreatic cancer was due to type II DM (DM2), which was diagnosed a year or so prior to his death and is a disease which VA recognizes is associated with presumed exposure to AO or other herbicide agents. See 38 C.F.R. § 3.309(e).

The Agency of Original Jurisdiction (AOJ) arranged a medical review of the claims file as part of the development of the claim. See 05/12/2016 C&P Exam. The examiner opined that it was not at least as likely as not that the Veteran's pancreatic cancer was due to his presumed exposure to AO in RVN of to DM2. Id. P. 2. The Board finds, however, that clarification is needed to avoid a failure to assist the appellant.

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The matters are REMANDED for the following action:

Send the claims file to the physician who conducted the 2016 medical review of the claims file or an equally qualified clinician. Inform the clinician that a negative opinion that relies solely on the fact that a disease is not among those VA deems associated with presumed exposure to herbicide agents is not an adequate medical opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). With this caution in mind, ask the clinician to provide an addendum report wherein he provides a full explanation for his opinion that the Veteran's pancreatic cancer was not to his presumed exposure to herbicide agents during his tour in RVN.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.