Citation Nr: 21073498 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-27 106 DATE: December 8, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1963 to November 1965. The Veteran died in October 2015. The appellant filed this claim as the surviving spouse. In September 2018, the Board remanded the issue of entitlement to service connection for the cause of the Veteran's death for additional evidentiary development and in February 2020 the issue was denied by the Board. The appellant appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated November 2, 2020 granted the motion and remanded the case to the Board. In June 2021, the Board remanded the issue pursuant to the JMR and the case has been returned to the Board for appellate review. In two October 2015 VA Forms 21-534, the appellant requested entitlement to DIC benefits. In the December 2015 VA administrative decision, the agency of original jurisdiction (AOJ) deferred the issue of entitlement to accrued benefits. The appellant submitted an additional VA Form 21-534 requesting entitlement to accrued benefits. As of this date, the issue of entitlement to accrued benefits has not been adjudicated by the AOJ. It would violate due process for the Board to take jurisdiction without an initial determination by the AOJ. Therefore, the Board will not take action on this matter, and it is referred to the AOJ for appropriate action. 1. Entitlement to DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 In two October 2015 VA Forms 21-534, the appellant requested entitlement to DIC benefits. In the December 2015 VA administrative decision, the AOJ denied the claim for DIC benefits. The appellant was notified of this decision in a December 2015 notice letter and, within one year, submitted a timely VA Form 21-0958 (Notice of Disagreement (NOD)) in August 2016 specifically listing "DIC" as the issue of disagreement. Review of the record does not show the AOJ has issued a SOC for this issue nor is there any indication of record that additional development has been completed pursuant to this issue. As such, the issue of entitlement to DIC benefits is remanded for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). 2. Entitlement to service connection for the cause of the Veteran's death In light of the appellant's assertion that the Veteran's death, specifically his colon cancer, was related to his presumed exposure to herbicide agents in the Republic of Vietnam, the AOJ was instructed in the June 2021 Board remand to complete the following: Obtain a medical opinion addressing whether any condition which caused or contributed materially to the Veteran's death, to specifically include colon cancer, was related to the Veteran's service, including his presumed exposure to herbicide agents in the Republic of Vietnam. In the August 2021 VA medical opinion provided, the VA examiner concluded the Veteran's colon cancer is not related to active military service, but the rationale provided was based on the absence of in-service complaint, diagnosis, or treatment of an intestinal condition, colon cancer is not presumptively related to exposure to herbicide, and speculation that the Veteran's colon cancer can be secondary, in part, to diabetes mellitus. While the August 2021 VA medical opinion addressed the Veteran's colon cancer, the examiner did not address the remaining conditions listed as a cause of death on his death certificate (history of intracranial hemorrhage, hypertension, and vascular dementia). Additionally, the rationale provided regarding colon cancer was speculative and based on the absence of medical evidence in service treatment records to support a link. "[A] remand by... the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with that directive of the June 2021 Board remand is necessary prior to appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. The Board also acknowledges that review of the record shows a VA medical opinion in November 2005 addresses the etiology of the Veteran's colon cancer on a secondary basis to service-connected diabetes mellitus, type II, regarding causation, and VA medical opinions in November 2005, February 2010, and May 2011 address the etiology of the Veteran's hypertension on a secondary basis to service-connected diabetes mellitus, type II, regarding causation. Nevertheless, a VA medical opinion addressing the etiology of the Veteran's colon cancer and hypertension on a direct basis to his presumed in-service herbicide exposure has not yet been provided. A VA medical opinion addressing the etiology of the Veteran's colon cancer on a secondary basis to service-connected diabetes mellitus, type II, regarding aggravation has not yet been provided. Additionally, an adequate VA medical opinion addressing the etiology of the Veteran's hypertension on a secondary basis to service-connected diabetes mellitus, type II, regarding aggravation has not yet been provided. As a result, an addendum VA medical opinion is needed to properly adjudicate this claim on appeal. The matters are REMANDED for the following actions: 1. Issue a SOC addressing the issue of entitlement to DIC benefits pursuant to the provisions of 38 U.S.C. § 1318. 2. Return the claims file to the examiner who provided the August 2021 VA medical opinion regarding the claim of service connection for the cause of the Veteran's death. If that examiner is no longer available, provide the claims file to another clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following regarding colon cancer (listed as a cause of death on the Veteran's death certificate): (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's colon cancer began during service or is related to an incident of service, to include consideration of the conceded herbicide exposure. (b.) Whether it is at least as likely as not that the Veteran's colon cancer was aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. The examiner must opine as to the following regarding hypertension (listed as a cause of death on the Veteran's death certificate): (c.) Whether it is at least as likely as not that the Veteran's hypertension began during service or is related to an incident of service, to include consideration of the conceded herbicide exposure. (d.) Whether it is at least as likely as not that the Veteran's hypertension was aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. The examiner must also opine as to the following: (e.) Whether it is at least as likely as not that the Veteran's intracranial hemorrhage (listed as a cause of death on his death certificate) began during service or is related to an incident of service, to include consideration of the conceded herbicide exposure. (f.) Whether it is at least as likely as not that the Veteran's vascular dementia (listed as a cause of death on his death certificate) began during service or is related to an incident of service, to include consideration of the conceded herbicide exposure. Note - It is not sufficient to provide an opinion that the Veteran's colon cancer, hypertension, intracranial hemorrhage, and/or vascular dementia is not directly due to herbicide exposure merely because it is not on the list of diseases and conditions presumptively linked with herbicide exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review all medical opinions provided to ensure that the requested information was provided. If any opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Readjudicate the claim on appeal for entitlement to service connection for the cause of the Veteran's death. If the decision is unfavorable to the appellant, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.