Citation Nr: 21073884 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-00 279 DATE: December 13, 2021 REMANDED Entitlement to special monthly compensation based on the need for aid and attendance of another person, as an accrued benefit is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1965 to April 1968. He died in January 2018. The Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in August 2017 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This appeal was most recently before the Board in January 2020, at which time it was remanded for additional development. The case has since returned to the Board for adjudication. The Board sincerely apologizes for any additional delay in rendering a decision for this claim on appeal; however, to ensure the Appellant is afforded every opportunity to substantiate her claim, another remand is required. Entitlement to special monthly compensation based on the need for aid and attendance of another person, as an accrued benefit is remanded. The Board notes that in December 2017, prior to his death, the Veteran had filed a Notice of Disagreement and the Appellant filed a request for substitution in August 2018 along with her claim for Dependency and Indemnity Compensation (VA Form 21-534). Receipt of a VA Form 21-534 will be accepted as both a claim for accrued benefits and a substitution request. See 38 U.S.C. § 5121A. The claims file does not show that the AOJ has adjudicated the Appellant's request to proceed as a substitute, and it has only issued Statements of the Case and Supplemental Statements of the Case regarding the claim for accrued benefits. The Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance. See 38 U.S.C. § 7104; 38 C.F.R. § 20.101(a). Therefore, on remand, the AOJ should determine whether the Appellant is eligible to pursue the claim as a substitute for the Veteran. See Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010). Whether the Appellant's claim will proceed on the basis of substitution or as an accrued benefit is significant because different laws apply, depending on how the claims are treated. Substitution pursuant to 38 U.S.C. § 5121A continues the deceased veteran's underlying claim or appeal, no new and independent substantive claim for benefits is created. Reliford v. McDonald, 27 Vet. App. 297, 302 (2015). In contrast, an accrued claim is a separate claim based on a separate statutory entitlement to benefits. Id. at 301. Where a substitute claimant is entitled to step in the shoes of the deceased veteran whose pending claim or appeal is being substituted, an accrued claimant is relegated to the beginning of the process. Similarly, while a substitute claimant retains the veteran's rights to VA's full duty to assist in the development, an accrued claim is based solely on evidence "either physically or constructively in the [deceased claimant's] file" at the time the claimant died. Id. (quoting Ralston v. West, 13 Vet. App. 108, 113 (1999)). The Board recognizes that the claim for accrued benefits was remanded for development in August 2019 and in January 2020. However, those remands were erroneous, given that a determination on substitution has not yet been made and accrued benefits claims must be decided on the evidence in the file at the time of the Veteran's death. Nevertheless, in the event that the AOJ finds that the Appellant may be a substitute for the Veteran, the Board finds that additional development must be conducted. If the AOJ determines that substitution is proper, and additional development may be conducted, the Board finds that an adequate medical opinion must be obtained. The January 2020 Board remand found the October 2019 VA medical opinion inadequate. The AOJ obtained a supplemental opinion in February 2020. The February 2020 VA examiner explained that herbicide agents are not a known cause of cerebrovascular accidents (CVA), and that the Veteran's CVA was not caused or aggravated by his service-connected disabilities. Finally, the examiner explained that the Veteran's hypertension "may have been" a contributing factor to CVA, but his hypertension was not caused or aggravated by a service-connected disability. First, the opinions provided are inadequate because they provided conclusory statements and lacked detailed rationales. There are no medical principles or explanations that allow the Board to understand how the examiner came to his conclusions. Merely listing facts before stating a conclusion does not constitute an adequate opinion. See Abernathy v. Principi, 3 Vet. App. 461, 465 (1992). See, also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an adequate medical examination report "must contain not only clear conclusions with supporting data, but also a reasoned medical explanation," and supporting analysis with sufficient detail that the Board can consider and weigh.). Second, the opinion is inadequate because the same rationale is used to form a negative opinion for proximate cause and aggravation when addressing secondary service connection. On this point, the Court of Appeals for Veterans Claims (Court) has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale. Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As such, an additional VA medical opinion should be obtained on remand, if additional development is permitted. Third, the Board finds that the opinion is inadequate because the VA examiner did not address the 2014 and 2018 National Academies of Sciences, Engineering and Medicine (NAS) Agent Orange Updates. The Court has held that the 2014 NAS Update is constructively before the Board. See, e.g., Garcia v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1453, citing Euzebio v. McDonough, 989 F.3d 1305, 1323 (Fed. Cir. 2021). The 2014 Update indicates "limited or suggestive evidence of association" between stroke and herbicide agent exposure. It is noted that some of the disabilities in the "limited or suggestive evidence of an association" category are subject to presumptive service connection. Regarding the 2018 NAS Update, it is implicated because the evidence suggests that the Veteran's CAV was related to underlying conditions such as hypertension. The 2018 NAS Update found "sufficient evidence" of an association between hypertension and herbicide exposure. It is noted that all the other health outcomes listed in the "sufficient evidence" category are already subject to presumptive service connection, including type 2 diabetes mellitus and ischemic heart disease (including CAD and myocardial infarction), which are listed on the Veteran's Certificate of Death. The February 2020 examiner specifically indicated there was no link between CVAs and herbicide exposure, and that hypertension may have been a contributing factor. Therefore, in light of the 2014 and 2018 NAS Updates, a remand is required, if development is permitted, to address the relationship, if any, between the Veteran's herbicide exposure, hypertension, CAD, and CVA. The matters are REMANDED for the following action: 1. The AOJ must issue a substitution determination regarding whether the appellant meets the eligibility criteria for substitution as the claimant. A copy of the determination must be sent to the Appellant. 2. If the request for substitution is allowed, the AOJ must complete development as indicated above, including obtaining a supplemental opinion from an appropriate VA examiner to determine the etiology of the Veteran's CVA. The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. (a.) The examiner must review and address the 2014 NAS Update, which indicates "limited or suggestive evidence of association" between stroke and herbicide agent exposure. The examiner should note that some of the disabilities in the "limited or suggestive evidence of an association" category are subject to presumptive service connection. (b.) The examiner must review and address the 2018 NAS Update, which indicates "sufficient evidence" of an association between hypertension and herbicide exposure. The examiner should discuss the relationship, if any, between herbicide exposure, and the Veteran's hypertension and CVA. (c.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's CVA was etiologically related to his presumed exposure to herbicide agents. (d.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's CVA was proximately due to by the Veteran's service-connected cause of death, including hypertension, and diabetes mellitus. The examiner should note there is temporal requirement in the law for secondary service connection. (e.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's CVA was aggravated beyond its natural progress by the Veteran's service-connected cause of death, including hypertension, and diabetes mellitus. The examiner should note there is temporal requirement in the law for secondary service connection. A complete rationale must be provided for all expressed opinions. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.