Citation Nr: 21070968 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-00 858 DATE: November 29, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is remanded. Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to August 1974. For his meritorious service, the Veteran was awarded (among other decorations) the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. The Veteran died in April 2017. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at an April 2021 videoconference hearing before the undersigned Veterans Law Judge; a transcript is of record. These matters were previously remanded by the Board in April 2021 for further development of the evidence. Specifically, the matters were remanded to obtain a medical opinion regarding the nature and etiology of the Veteran's acute myelogenous leukemia (AML) and myelodysplastic syndrome (MDS), and to address whether the Veteran's service-connected post-traumatic stress disorder (PTSD) caused, contributed substantially or materially to cause death, or aided or lent assistance to the production of the death of the Veteran. 1. Entitlement to service connection for the cause of the Veteran's death 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 3. Entitlement to accrued benefits While the Board regrets further delay, a remand is needed for additional development. This is necessary to ensure that the appellant is afforded every possible consideration and that there is a complete record upon which to decide her appeal. The appellant contends that the Veteran's AML and MDS were related to the Veteran's military service, consistent with the Veteran's own contentions during his lifetime, and that AML and MDS ultimately caused his death. Specifically, she contends, as did the Veteran, that his AML and MDS were due to herbicide exposure. In this case, current diagnoses for AML and MDS are established. See July 2021 VA Hematologic and Lymphatic Conditions Examination Report. The Veteran's exposure to herbicide agents has been conceded. The Veteran's death certificate lists AML and MDS as the cause of his death. At the time of his death, PTSD was the Veteran's only service-connected disability and was evaluated as 100 percent disabling from September 15, 2015. Pursuant to the April 2021 Board remand, in July 2021, a VA examiner opined that it was less likely than not that the Veteran's AML and MDS were due to herbicide exposure. The examiner noted that there is no medical literature suggesting that AML and MDS are linked to any herbicide exposure, and that in the 2003 article title, "Agent orange review," it was noted that the Institute of Medicine has not found AML to be associated with herbicide agents used in Vietnam. The examiner also opined that the Veteran's AML and MDS were less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The Board finds that the July 2021 VA medical opinion is inadequate. While the examiner addressed the 2003 article "Agent orange review," the April 2021 Board remand directive instructed "[c]onsideration of any articles of record." The Board notes that in March 2017, the appellant submitted a 2017 UpToDate article titled "Clinical manifestations and diagnosis of the myelodysplastic syndrome." The July 2021 opinion did not address this article. Additionally, while the examiner opined the Veteran's AML and MDS were less likely than not due to his service-connected PTSD, an opinion addressing whether the Veteran's PTSD caused death, contributed substantially or materially to cause death, or aided or lent assistance to the production of death was not provided. For these reasons, the Board finds that the April 2021 remand directives have not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). Thus, a new medical opinion is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA provided an examination, even if not required to do so, an adequate one must be provided). The claim for DIC under 38 U.S.C. § 1318 is inextricably intertwined with the remanded claim; thus, the Board will defer consideration of this claim at this time. The matters are REMANDED for the following action: 1. Obtain another medical opinion from a qualified medical professional, preferably one specializing in oncology or toxic environmental exposures, on the nature and etiology of the Veteran's diagnosed acute myelogenous leukemia and myelodysplastic syndrome. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinions, and such review must be noted in the examination report. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acute myelogenous leukemia and myelodysplastic syndrome were in any way related to his active duty service, to include his exposure to herbicide agents. In providing the above opinion, the examiner is advised that the exposure to herbicide agents is acknowledged. The examiner is asked to address the 2017 UpToDate article titled "Clinical manifestations and diagnosis of the myelodysplastic syndrome" that was submitted by the appellant in March 2017. The examiner's attention is also directed to the November 2017 VA medical opinion wherein the examiner noted a statement by a VA staff hematologist that organic solvents, such as benzene, have been associated with a higher risk of developing acute myeloid leukemia. Consideration of any additional articles of record is also requested. The examiner is advised that the absence of acute myelogenous leukemia and myelodysplastic syndrome from the list of conditions which are presumed to be the result of exposure to herbicide agents in Vietnam is not, by itself, a sufficient explanation for a negative opinion. The examiner must specifically address the relationship between herbicide agent exposure and acute myelogenous leukemia. A complete rationale for the opinions rendered must be provided. A complete rationale should include an explanation of the evidence used to support the conclusion, as well as an explanation as to why that evidence supports the conclusion. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 2. Obtain another medical opinion from a qualified medical professional on the relationship of the Veteran's post-traumatic stress disorder to his death. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinions, and such review should be noted in the examination report. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected post-traumatic stress disorder caused, substantially or materially contributed to cause, or aided or lent assistance to cause, the Veteran's death. The examiner is advised he or she is not asked to opine whether the Veteran's acute myelogenous leukemia and/or myelodysplastic syndrome post-traumatic stress disorder were due to his service-connected post-traumatic stress disorder. Rather, consideration of whether the Veteran's PTSD caused death, contributed substantially or materially to cause death, or aided or lent assistance to the production of death is needed. A complete rationale for the opinions rendered must be provided. A complete rationale should include an explanation of the evidence used to support the conclusion, as well as an explanation as to why that evidence supports the conclusion. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.