Citation Nr: 21068569 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-00 170 DATE: November 10, 2021 REMANDED Entitlement to service connection for cause of death is remanded. Entitlement to survivor pension benefits from May 1, 2017 is remanded. Entitlement to Dependency and Indemnity (DIC) pursuant to 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 1971 to December 1992. The Veteran died in April 2016. The appellant is the surviving spouse. The Board regrets the additional delay; however, a remand is necessary to ensure compliance with the Board's prior remand instructions and to ensure that due process is met. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for cause of death The appellant contends that the Veteran's death is related to in-service herbicide exposure and/or tuberculosis exposure. In April 2020 the Board remanded the issue for further development to include obtaining outstanding records and a medical opinion. In May 2020 a development letter was sent to the appellant requesting additional evidence. The appellant provided a signed authorization for medical records from four different health facilities that included the providers name, addresses, and dates of treatments. The medical records request was rejected with the reason cited as "death certificate needed." See Correspondence August 2020. The death certificate for the Veteran is of record. See Death Certificate July 2016. Additionally, it does not appear that the appellant received notification of the rejection. The duty to assist requires that VA makes reasonable efforts to obtain relevant records not in the custody of a Federal agency. 38 C.F.R. § 3.159(c)(1). The Board finds that the Regional Office did not make reasonable efforts to obtain the private records as directed by the April 2020 remand. Furthermore, the Board finds the medical opinion of record inadequate. The examiner concluded that due to insufficient evidence tuberculosis could not be verified as the cause of death noting missing medical records from the Veteran's final three months. The cited missing records were included in the releases for relevant medical records provided by the appellant. Therefore, as the evidence indicates that there are outstanding relevant medical records for the time period immediately preceding the Veteran's death, which may include treatment for tuberculosis the VA medical opinion is inadequate as it is based on a factually incomplete premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). The Board notes that the appellant contends that the Veteran was exposed to herbicides while serving in Korea in the demilitarized zone (DMZ) from November 1971 to December 1972, which is after the presumptive period. The appellant alleges that Agent Orange lingers and contaminates ground and water supplies for years; thus, exposing the Veteran. The Board considered the appellant's contentions; however, there is no competent and credible evidence that the Veteran was exposed to herbicide agents during his period of service in Korea. Therefore, there is insufficient evidence to establish herbicide exposure on a facts-found basis. 2. Entitlement to DIC under 38 U.S.C. § 1318 and survivor pension benefits Adjudication is deferred on these matters as the issues are inextricably intertwined with the issue of service connection for the cause of the Veteran's death. Thus, a remand of these claims is also required. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Contact the appellant and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the appellant and her representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The appellant must then be given an opportunity to respond. 3. After the above development is completed, obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. Based on a review of the record the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cause of death, tuberculosis and/or acute myeloid leukemia, was related to his active service, or is caused by or aggravated by military service, to include due to exposure to tuberculosis. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must consider and address the statement from B.A. stating that the Veteran was treated for tuberculosis. See Buddy Statement January 2017. The examiner is advised that there are service treatment records that are unavailable. The lack of documentation of any injury or illness during service should not be relied upon in providing a rationale. In all opinions rendered, the examiner is advised that the Veteran was competent to report his symptoms and the appellant is competent to describe his observable symptoms. The examiner must specifically consider and discuss the lay statements of record and the opinion and rationale should reflect such consideration. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.