Citation Nr: 21073057 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-32 457 DATE: December 7, 2021 REMANDED Entitlement to accrued benefits based on a pending claim for service connection lung cancer, to include widespread metastases to the lung, due to herbicide exposure, is remanded. Entitlement to accrued benefits based on a pending claim for service connection for metastatic malignant melanoma of left shoulder due to herbicide exposure, claimed as melanoma of left shoulder, is remanded. Entitlement to accrued benefits based on a pending claim for service connection for malignant peripheral nerve sheath sarcoma of right frontal forehead due to herbicide exposure, claimed as melanoma of right frontal forehead, is remanded. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from July 1968 to June 1971, including service in the Republic of Vietnam from January 1969 to January 1970. He died in June 2013. The Appellant is his surviving spouse. See Administrative Decision received May 13, 2019. In August 2018, the Board remanded the case for further development. This matter has since been returned for additional appellate review. The Board has recharacterized the Veteran's original March 2012 claims for service connection for lung cancer/melanoma, melanoma of left shoulder, and melanoma of right frontal forehead more broadly as claims for entitlement to service connection for lung cancer to include widespread metastases to the lung, metastatic malignant melanoma of left shoulder, and malignant peripheral nerve sheath sarcoma of right frontal forehead. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As will be discussed below, the medical evidence shows that prior to his death, the Veteran had two types of skin cancers: metastatic malignant melanoma and malignant peripheral nerve sheath sarcoma. Unfortunately, the medical evidence is in conflict as to whether both or one of these cancers metastasized to his lungs. Finally, the Board also notes in September 2015 the Appellant requested a hearing before the Board. However, in July 2021, she withdrew her request for a hearing. REASONS FOR REMAND While the Board sincerely regrets this delay, further development is required to ascertain the etiology and nature of the Veteran's cancers, to include widespread metastases to the lungs (lung cancer), metastatic malignant melanoma (melanoma), and malignant peripheral nerve sheath sarcoma (MPNS sarcoma). The Appellant seeks service connection for the Veteran's lung cancer, melanoma, and MPNS sarcoma. She contends the Veteran was exposed to Agent Orange during his military service which caused his cancers. The Veteran's death certificate indicated he died as a result of metastatic malignant melanoma and malignant peripheral nerve sheath sarcoma. As noted above, the Veteran served in the Republic of Vietnam from January 1970 to January 1971. Thus, his exposure to herbicides is conceded. The Board acknowledges that even though melanoma and MPNS sarcoma are not explicitly listed as presumptive disorders under 38 C.F.R. § 3.309(e), direct service connection may be established by evidence demonstrating that the disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the Board notes the April 2013 VA examiner stated the Veteran's lung cancer started from a lesion on his forehead and metastasized to his lungs. In a May 2013 rating decision, the RO determined the Veteran's lung cancer was not considered a presumptive condition under 38 C.F.R. § 3.309(e) because the primary cancer is not considered a presumptive condition. As the Board will discuss below, an addendum medical opinion is needed to address whether MPNS sarcoma is considered a soft-tissue sarcoma as described in section 3.309(e). Following the August 2018 Board remand, the RO obtained a medical opinion from a Staff Physician to address whether MPNS sarcoma is considered a soft-tissue sarcoma as named in 38 C.F.R. § 3.309(e), and if so, whether the MPNS sarcoma or any other disease caused the Veteran's death or substantially contributed to his cause of death. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Initially, the VA medical examiner failed to review the Appellant's September 2016 written brief as instructed in the August 2018 remand. The Board also finds the VA medical opinion to be inadequate for the following reasons. First, the examiner stated one of the death certificates contained in VBMS listed the Veteran's cause of death as electrocution. The Board reviewed this death certificate and notes it does not belong to the Veteran and must have been mistakenly placed in the Veteran's electronic claims file. Second, the examiner stated MPNS sarcoma is not a soft-tissue sarcoma as described in section 3.309(e) but failed to explain why. Finally, the examiner concluded the Veteran was misdiagnosed with MPNS sarcoma and later diagnosed with melanoma. As such, the VA examiner concluded that the melanoma caused the Veteran's death. He explained melanoma is not a presumptive condition listed under section 3.309(e) and therefore is less likely than not connected to the Veteran's service. In this case, the VA examiner must consider and discuss the specific facts of the Veteran's case and determine whether his exposure to herbicides directly caused his melanoma. Additionally, the Appellant provided a private medical opinion dated October 11, 2019 from an Oncologist with over 20 years of experience. The Board acknowledges and appreciates the detailed discussion provided in the private medical opinion from Dr. J.T., however the Board also finds this opinion inadequate to address the etiology of the Veteran's lung cancer, melanoma, and MPNS sarcoma. Following a review of the pathology reports, Dr. J.T. identified the Veteran was diagnosed with two types of skin cancers, MPNS sarcoma and melanoma. She noted the Veteran's treating doctors used the terms "sarcoma" and "melanoma" interchangeably in their treatment notes, thus adding to the confusion as to the Veteran's diagnoses. While Dr. J.T. stated MPNS sarcoma is considered a soft-tissue sarcoma as described in section 3.309(e), she failed to provide an explanation. Additionally, Dr. J.T. did not provide an opinion as to whether the Veteran's melanoma was directly caused by the Veteran's exposure to herbicides and failed to address whether the Veteran's MPNS sarcoma was a cause or contributing factor of the Veteran's death. Based on the foregoing, a remand is necessary to obtain an addendum medical opinion to address the etiology and nature of the Veteran's lung cancer, melanoma, and MPNS sarcoma. Accordingly, this case is REMANDED for the following actions: Obtain a records review and medical opinion from an Oncologist with sufficient experience and expertise to comment on the etiology of the Veteran's lung cancer to include widespread metastases to the lung, metastatic malignant melanoma of left shoulder, and malignant peripheral nerve sheath sarcoma of right frontal forehead. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. Following a review of the relevant records and lay statements to include the September 2016 brief and October 11, 2019 private medical opinion, the examiner is asked to provide the following opinions: a) whether the Veteran's conceded exposure to herbicides at least as likely as not (a 50 percent probability or greater) directly caused his: i. lung cancer to include widespread metastases to the lung; ii. metastatic malignant melanoma of left shoulder; and/or iii. malignant peripheral nerve sheath sarcoma of right frontal forehead. b) whether the Veteran's lung cancer, to include widespread metastases to the lung: i. at least as likely as not (a 50 percent probability or greater) caused the Veteran's death; ii. at least as likely as not (a 50 percent probability or greater) contributed substantially or materially to the Veteran's cause of death. c) whether the Veteran's metastatic malignant melanoma of left shoulder: i. at least as likely as not (a 50 percent probability or greater) caused the Veteran's death; ii. at least as likely as not (a 50 percent probability or greater) contributed substantially or materially to the Veteran's cause of death. d) whether the Veteran's malignant peripheral nerve sheath sarcoma of right frontal forehead: i. is considered a soft-tissue sarcoma under 38 C.F.R. § 3.309(e); ii. at least as likely as not (a 50 percent probability or greater) caused the Veteran's death; iii. at least as likely as not (a 50 percent probability or greater) contributed substantially or materially to the Veteran's cause of death. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.