Citation Nr: 21073490 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-28 344 DATE: December 8, 2021 REMANDED Entitlement to service connection for cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 to April 1968. The Veteran died in March 1998. The Appellant is his surviving spouse. Entitlement to service connection for the cause of the Veteran's death is remanded. The Appellant contends that the Veteran's cause of death was causally related to his active service, specifically as due to exposure to herbicide agents while stationed in the Republic of Vietnam. This claim was previously remanded by the Board in July 2018 for a VA medical opinion and in April 2021 and July 2021 for additional VA addendum opinions for a more detailed rationale. Although the Board regrets the additional delay, it finds that the July 2021 remand directives have not been substantially complied with, and another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The July 2021 remand directed the VA examiner to opine whether it was at least as likely as not (50 percent or greater probability) that the Veteran's duodenal carcinoma was related to active service, to include as due to herbicide exposure in Vietnam. The Board explained that a detailed rationale must be provided for each conclusion. The Board then stated that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (etiology) as it is to find against the conclusion. The Board further emphasized that the examiner must specifically consider and address the studies submitted by the Appellant or her representative and provide clear medical explanations for why they do not find them probative. If the examiner relied upon medical literature in reaching their conclusions, they were instructed to identify and specifically cite each reference material utilized. Pursuant to the July 2021 remand directives, a new VA medical opinion was obtained in August 2021. The examiner opined that the Veteran's duodenal adenocarcinoma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that cancers of the gastrointestinal (GI) system, esophagus, stomach, liver, pancreas, colon, and rectum have been extensively studied in Vietnam veterans, groups with herbicide exposure in the workplace, and people exposed to dioxins. The examiner then stated that these studies have not found a significant link between these exposures and any GI cancer (ACS 2017). As the August 2021 VA examiner failed to comment in detail on the evidentiary submissions from the claimant regarding a nexus between herbicides and GI cancers, the Agency of Original Jurisdiction (AOJ) requested an addendum medical opinion. The August 2021 VA examiner provided an addendum medical opinion in September 2021. The examiner again opined that the Veteran's duodenal adenocarcinoma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he stated that review of the medical record and service treatment records showed no evidence of the diagnosis, treatment, or symptoms suggestive of any gastrointestinal condition while on active duty or within one year of separation from military service. He then repeated the rationale he provided in his August 2021 medical opinion. As the August and September 2021 VA medical opinions failed to comply with the July 2021 Board remand directives, the AOJ requested a new VA medical opinion to be provided by a new VA examiner. In September 2021, a new VA examiner explained that she had reviewed the Veteran's claims file. She stated that she had considered the studies submitted by the Appellant that suggest farmers exposed to various herbicides containing 2, 4-D that includes Agent Orange, may have increased risks of developing cancers especially in the stomach. She explained that this study only expressed association and not causation. She also explained that an association/correlation does not equate to causation. She went on to indicate that there was no clear medical evidence in medical literature that established a causal link between duodenal adenocarcinoma and Agent Orange or herbicide agent exposure. She therefore concluded that the Veteran's cause of death was less likely as not related to active service to include due to herbicide exposure in Vietnam. The Board finds the August 2021 and the initial September 2021 VA medical opinions are inadequate for adjudication purposes for the same reason that the AOJ found them to be inadequate. The examiner did not address the studies submitted by the Appellant or her representative and provide clear medical explanations for why they do not find them probative as was instructed in the July 2021 Board remand. The Board also finds the second September 2021 VA medical to be inadequate for adjudication purposes because the examiner did not identify and specifically cite the medical literature she reviewed when she concluded that there was no causal link between duodenal adenocarcinoma and exposure to Agent Orange or herbicides. Accordingly, a remand is necessary to obtain an adequate VA medical opinion regarding the nature and etiology of the Veteran's cause of death. The Board also notes that the Veteran's private treatment records suggest his duodenum cancer may have metastasized from pancreatic cancer, that was precent in 1997. Accordingly, the VA examiner must provide an opinion as to whether the Veteran's cause of death was in fact duodenum cancer or whether the Veteran's duodenum cancer metastasized from his earlier pancreatic cancer. The Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Accordingly, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. The matter is REMANDED for the following action: Obtain an advisory medical opinion from an independent medical expert pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. a) The physician is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cause of death (listed on his death certificate) was duodenum cancer or whether the Veteran's duodenum cancer metastasized from his earlier pancreatic cancer. In rendering the above opinion, the examiner must consider and discuss the Veteran's various private treatment records from 1997 and 1998 documenting pancreatic cancer. b) The physician is then asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cause of death is related to active service, to include as due to exposure to herbicide agent exposure while stationed in Vietnam. A detailed rationale must be provided for each conclusion. It is emphasized that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (etiology) as it is to find against the conclusion. The examiner must specifically consider and address the studies/reports referenced by the Appellant in the January 2014 submission and provide clear medical explanations for why he or she does finds them probative/not probative. If it is less likely that the Veteran's cause of death is related to his military service, to include as due to exposure to herbicides while stationed in Vietnam, the examiner should discuss why this is the case. If medical literature is relied upon in reaching his or her conclusions, the examiner should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. (Continued on the next page) The physician is reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.