Citation Nr: 21071258 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-35 691 DATE: November 30, 2021 REMANDED Entitlement to service connection for the cause of death is remanded. REASONS FOR REMAND The Veteran had active service during the Gulf War Era and Peacetime in the United States Army from August 1982 to January 1983 and from November 1990 to June 1991. The Veteran also had service in the Army National Guard in May 1987. He passed away in September 2014. The Appellant is seeking benefits as the Veteran's surviving spouse. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. Entitlement to service connection for the cause of death is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board remanded this claim in March 2020 to obtain an independent medical opinion from an oncologist (M.D.) to determine whether the Veteran had an additional disability due to a delay in treatment, or caused or worsened by VA treatment, procedures, or examinations, and if so, whether this additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, and was reasonably foreseeable. VA provided addendum opinions in August and October 2020. However, these are inadequate because they were provided by a DO specializing in family practice. Subsequently, VA obtained an independent medical opinion from an oncologist in December 2020. However, the Board also finds the December 2020 opinion to be inadequate. The examiner opined, "[t]he patient didn't suffer additional disability due to the time-delay, although it's always desirable to diagnose/treat ASAP; specifically, it cannot be demonstrated that the patient's stage changed during the interim time-period AND that any presumed evolution would have affected treatment and/or prognosis." However, the examiner did not explain his opinion. He should have discussed why it is desirable to diagnose/treat as soon as possible, and that if it is desirable, why is the delay in treatment not evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Additionally, the examiner did not explain why it "cannot be demonstrated" that the Veteran's disability worsened or that any progression of the disease would have affected treatment. (i.e., lack of medical evidence, limitations of knowledge in the medical community at large, etc.). Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, a remand is necessary to obtain a new independent medical opinion from an oncologist (M.D.). The matters are REMANDED for the following action: 1. See explanation above for finding the December 2020 inadequate. 2. The RO should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, clinic, or medical institution (i.e., an independent medical expert who is not an employee of the Department). 3. Pursuant to 38 U.S.C. §5109, the file should be sent to an oncologist (M.D.) to offer an independent medical opinion addressing the following: a) Did the Veteran suffer from an additional disability following the June 2010 examination or the April 2011 procedure at VA Medical Centers? To determine whether the Veteran had an additional disability, the examiner should compare the Veteran's condition before the examination or procedure, to the Veteran's condition after the examination or procedure including his reports of symptoms and his treatment records. b) If the Veteran had an additional disability, was the additional disability caused by or made worse due to any delay in treatment following the June 2010 examination or the procedure performed in April 2011? c) If the Veteran had an additional disability caused or made worse by VA examination or procedures, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? d) If the Veteran had an additional disability caused or made worse by VA treatment, was the additional disability caused by an event not reasonably foreseeable? Specifically, the reviewer is asked to state whether the additional disability was the type of risk that a reasonable health care provider would not have anticipated as a result of the care provided. e) A detailed explanation (rationale) is requested for all opinions provided. (By law, VA is not permitted to rely on any conclusion that is not supported by a thorough explanation.) Specifically, 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. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.