Citation Nr: 21073928 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-29 706 DATE: December 13, 2021 REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran passed away in January 2017, and the Appellant is his surviving spouse. The Veteran served on active duty in the United States Marine Corps from March 1966 to July 1986, including service in the Republic of Vietnam; and then from July 1986 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2019 substantive appeal (VA Form 9), the Appellant requested a live videoconference hearing with a Veterans Law Judge. The Appellant subsequently requested to cancel the hearing and that the appeal proceed with the evidence on record. This matter was previously before the Board in March 2021 and July 2021. In both instances the matter was remanded for further development. There has been substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). However, the Appellant submitted additional evidence received on October 11, 2021. The new medical literature needs to be addressed by medical examiner in an addendum opinion prior to the Board being able to make a final decision on the merits. Entitlement to service connection for cause of the Veteran's death In this case, the Appellant seeks to establish service connection for the cause of the Veteran's death. See November 2017 VA Form 21-534 Application for Dependency and Indemnity Compensation. The Appellant seeks service connection for the cause of the Veteran's death. She contends that the Veteran's exposure to certain herbicide agents during service in the Republic of Vietnam, during the Vietnam Era, led to the development of coronary artery disease (CAD) which then led to and contributed to the Veteran's (COPD), his ultimate cause of death. See March 2017 VA Form 21-526EZ; see also March 2017 Appellant Statement in Support of Claim. The record establishes that the Veteran served in Vietnam and VA concedes herbicide exposure. The Board notes that the Veteran's service treatment and dental records could not be located. The RO made a finding of unavailability. See August 2014 Correspondence. Regardless, exposure is conceded. A VA medical opinion was obtained in July 2021 regarding the Veteran's COPD and any link with service or herbicide exposure. The July 2021 examiner reviewed the entire record and provided a negative nexus, that the COPD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed exposure to herbicides, including Agent Orange. The examiner explained that the Veteran had a 45 pack year of smoking which the examiner explained is the primary risk factor for developing COPD. The examiner noted that there is no medical literature suggesting that in the setting of tobacco use that Agent Orange would be the greatest risk factor contributing to COPD. Additionally, the examiner noted there were no other known risk factors of record that would cause the Veteran to develop COPD. The examiner therefore opined that the claimed COPD is less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's service. The Appellant submitted in medical abstract in October 2019 suggesting a possible link between COPD and exposure to dioxin containing herbicides. The July 2021 examiner addressed this article. Specifically, he noted that the article does not address the Veteran's specific facts, including his history of tobacco use over 30 years. Therefore, the examiner opined that there is no evidence that remote Agent Orange exposure would be the primary risk factor for COPD in the setting of a 45 pack years history. The Appellant submitted additional medical literature suggesting a link between COPD and dioxin in June 2021 and October. The Board does not have the medical expertise to formulate an opinion regarding these articles. Therefore, the Board finds a remand is necessary to address these articles by a medical examiner in an addendum opinion. The Appellant requested a Nehmer review of the Veteran's file. This has not been sufficiently addressed in the record by the RO and as such is to be addressed on remand as well. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. On remand, refer the case for appropriate action for a Nehmer review of the Veteran's file and enter any appropriate findings. 2. Obtain an addendum opinion regarding the Veteran's COPD. If possible, return the Veteran's complete record, to include a copy of this remand, and the claims folder to the examiner who reviewed the file and provided the July 2021 medical opinion. If it is not possible, then forward the Veteran's claim file to another appropriate medical professional who has the requisite experience to render the requested medical opinions. The examiner must review the expanded record and address the following: (a.) Is the Veteran's COPD that caused his death at least as likely as not (50 percent or greater probability) have its onset or is related to active service, including exposure to herbicide agents in the Republic of Vietnam. (b.) In addition to addressing a nexus between herbicide agent exposure and COPD, the examiner should also address etiology on a direct basis, i.e., a nexus between COPD and the Veteran's military service in general. The examiner must note and discuss the treatise material (articles) submitted by the Appellant in June 2021 (authored by Martinez, et. al.) and October 2021 (authored by Boschetto, et. al.) which she contends show a link between dioxin exposure and COPD. The examiner is also asked to address all previous articles as well, including those submitted in June 2021. The examiner's attention is drawn to the Veteran's 30+ years of smoking as found throughout the Veteran's medical record. The examiner is asked to discuss the lay statements of record and to consider/reconcile any conflicting medical evidence. The rationale for all opinions rendered must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.