Citation Nr: 21073169 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-11 090 DATE: December 7, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death, to include whether compensation under 38 U.S.C. § 1151 is warranted, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1969 to March 1971, including verified service within the Republic of Vietnam. The Veteran died in February 2014. The appellant is his surviving spouse, who filed an original dependency and indemnity compensation (DIC) claim in March 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in November 2014. This matter was previously before the Board in August 2018 and April 2021 and was remanded both times for evidentiary development. The appellant testified before a Veterans Law Judge (VLJ) in April 2018. A transcript of the hearing has been reviewed and associated with the claims file. In February 2021, the Board informed the appellant that the VLJ who conducted her hearing is no longer employed at the Board and that she had the right to request another hearing before a new VLJ. In March 2021, the appellant clearly and unambiguously waived her right to another hearing. Entitlement to service connection for the cause of the Veteran's death, to include whether compensation under 38 U.S.C. § 1151 is warranted, is remanded. The appellant asserts that she is entitled to compensation for the cause of the Veteran's death from pancreatic cancer. She has specifically claimed that his pancreatic cancer was caused and/or aggravated beyond its natural progression by his in-service exposure to herbicide agents and/or by his service-connected PTSD with associated alcohol abuse. See March 2014 Statement. Regarding herbicide agent exposure, she asserted that the tumors involved in the Veteran's pancreatic cancer were slow-growing and probably had been growing inside his body for decades before it was diagnosed in 2013 as stage IV pancreatic cancer. See October 2014 Congressional Correspondence. She asserted that two clinicians, Dr. W.B. in May 2000, and Dr. C.B. in September 2002, stated that in their opinion exposure to Agent Orange likely causes pancreatic cancer in veterans, and that Dr. M.K., a VA physician, stated in April 2015 that in his opinion published studies "strongly suggest" that herbicides increase pancreatic cancer. See March 2016 VA Form 9. She also asserted that the Veteran had no family history of pancreatic cancer and was not exposed to other harmful chemicals. See July 2015 Notice of Disagreement; Transcript of Record at 5. The appellant stated that a private law firm submitted a medical opinion from an oncologist indicating that several epidemiology and toxicology studies conducted from 1969 to 1998 suggest Agent Orange has been linked to pancreatic cancer and that it more likely than not hastens the spread of pancreatic cancer. See March 2016 VA Form 9. She has also claimed entitlement to DIC pursuant to 38 U.S.C. § 1151 by alleging that a VA provider failed to timely diagnose and treat the Veteran's pancreatic cancer. Specifically, she contends that the Veteran was seen in August 2010 for an Agent Orange test and a hearing test but did not hear what the results of the tests were. Also, in October 2012, the Veteran was seen for a swollen gland in his neck and a stiff neck. After a biopsy, in November 2012 he had surgery to remove a benign nodule on the back of his throat. The appellant indicated that the Veteran had a full-body scan in November 2012 and contends that the scan was read incorrectly because the pancreatic cancer was diagnosed only four months later, already at stage IV. The appellant ultimately contends that if the Veteran's pancreatic cancer had been identified when his lymph nodes were swollen or in a November 2012 full-body scan, then he might not have died. See March 2016 VA Form 9; Transcript of Record at 5-6. 10; April 2020 Statement; January 2021 Correspondence. The Veteran's February 2014 death certificate lists the cause of his death as pancreatic cancer. The approximate interval between onset and death as "unknown." At the time of his death in February 2014, the Veteran was service-connected for PTSD and migraine headaches, status post shrapnel wound, head. In April 2021, the Board remanded this matter because the November 2020 VA medical opinion regarding exposure to herbicide agents lacked an adequate rationale and the PTSD opinion erroneously stated that the Veteran's cancer clearly and unmistakably preexisted his active duty service. Accordingly, new VA medical opinions were issued in April 2021. The examiner opined that the Veteran's pancreatic cancer was less likely than not caused or aggravated beyond its natural progression by his exposure to herbicide agents or by his PTSD, including the Veteran's PTSD-related alcohol abuse. The Board finds that an addendum medical opinion is necessary to address whether the Veteran's PTSD and associated alcohol abuse and/or his shrapnel wound residual disability were contributory causes of his death. Service connection for the cause of a veteran's death may be granted if a service-connected disability contributed substantially or materially, combined, aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). To date, medical opinions addressing whether the Veteran's pancreatic cancer was secondary to his service-connected PTSD have been issued, but no examiner has opined as to whether the Veteran's service connected disabilities were contributory causes of his death. Accordingly, a remand is necessary to obtain a medical opinion that applies the standards set forth in 38 C.F.R. § 3.312. Additional medical opinions are also needed to address the appellant's entitlement to benefits under 38 U.S.C. § 1151. To date, no examiner has opined as to whether VA failed to timely diagnose the pancreatic cancer after the October 2012 PET scan, which was moderately suspicious for malignancy. The appellant has also stated that the results of the Veteran's August 2010 Agent Orange test may have contained information relevant to the diagnosis or treatment of his pancreatic cancer, and that VA did not make the results available to the Veteran. Therefore, an addendum opinion should also address these contentions. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from the examiner who issued the November 2020 medical opinion or, if she is unavailable, then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. After reviewing the evidence, the examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's PTSD and associated alcohol abuse combined with his pancreatic cancer to cause death, aided or lent assistance to the production of death, rendered the Veteran materially less capable of resisting the effects of the primary cause of death, and/or otherwise materially contributed to the Veteran's death? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the migraine headaches, status-post shrapnel wound, head, combined with his pancreatic cancer to cause death, aided or lent assistance to the production of death, rendered the Veteran materially less capable of resisting the effects of the primary cause of death, and/or otherwise materially contributed to the Veteran's death? (c.) Is it at least as likely as not (a 50 percent or greater probability) that VA failed to timely diagnose the Veteran's pancreatic cancer after the October 2012 PET scan was suspicious for malignancy? In responding, please address whether a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the cancer and rendered treatment at that time. Lastly, address whether the Veteran's death could have been avoided if proper diagnosis and treatment of pancreatic cancer had been rendered earlier. (d.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's death could have been avoided if the results of the Veteran's August 2010 Agent Orange examination had been made available to him? In responding, please consider the degree of skill and care ordinarily required of a physician in the medical profession. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.