Citation Nr: 21073350 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-64 264 DATE: December 8, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1977 to March 1980. He died in November 2015. The Appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The appellant testified at a May 2021, hearing held before the undersigned via videoconference. A hearing transcript is associated with the claims file. In June 2021, the Board remanded these matters for further evidentiary development. A remand by the Board confers upon the Veteran, 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. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. In its June 2021 remand, the Board directed that the AOJ obtain VA a medical nexus opinion to determine whether the claimed in-service exposure to diesel fumes and asbestos in vehicle brakes either caused or contributed substantially or materially to the Veteran's cause of death. As noted in the prior remand, the Veteran's DD-214 military occupational specialty (MOS) was a track vehicle mechanic, and his death certificate indicates that he passed away due to small cell lung cancer. Pursuant to the Board's remand, a VA medical opinion was obtained in July 2021. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In rendering the negative July 2021 nexus opinion, the VA examiner provided a recitation of medical literature primarily regarding risk factors associated with lung cancer and the exposure of diesel fuel and fumes among servicemembers, noting increased risk, but did not discuss how it applied to the Veteran's individual case. Similarly, while the VA examiner also cited medical literature concerning the risk factors associated with cigarette smoking and lung cancer, no rationale was provided as to why the Veteran's history of smoking was more likely the cause of his death than the in-service exposure to fuel and fumes. Therefore, the opinion is inadequate, and another remand is warranted to obtain a VA medical opinion to determine the nature and etiology of the Veteran's cause of death. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion regarding the etiology small cell lung cancer; the claims folder must be reviewed in conjunction with the opinion. The examiner must opine as to whether it is at least as likely as not that the Veteran's in-service exposure diesel fumes and asbestos either caused or contributed substantially or materially to the Veteran's death. A full and complete rationale for all opinions expressed is required. 2. Then, readjudicate the claim on appeal. If the decision is adverse to the appellant, issue a supplemental statement of the case and return the case to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.