Citation Nr: 21074410 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-00 822 DATE: December 15, 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 United States Marine Corps from June 1968 to December 1968. He passed away in November 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Agency of Original Jurisdiction (AOJ). The appeal has come before the Board numerous times, most recently in August 2021. The claim was remanded to obtain a clarifying opinion as to whether the Veteran's service-connected kidney cancer caused or contributed to his death. The VA examiner was specifically instructed to provide a complete explanation if he was unable to provide an opinion without resorting to mere speculation. The examiner was instructed to explain whether the inability to provide a more definitive opinion was the result of a need for additional information or that he or she had exhausted the limits of current medical knowledge in providing an answer to the posed questions. An addendum opinion was associated with the file in August 2021. The examiner was requested to opine as to whether the Veteran's renal cell carcinoma caused or contributed substantially and materially to the Veteran's cause of death. The examiner responded as follows: "This would require speculation on my part. The veteran had 2 malignancies. The pancreatic ca was the more aggressive cancer with metastasis to the liver and lymph nodes. There is no evidence that the renal cell carcinoma metastasized. There did not appear to be any further problems with the renal cell ca after his surgery. The pancreatic ca was clearly the more aggressive tumor and was a more substantial cause of the Veteran's death." Initially, the Board notes the August 2021 opinion is simply a reiteration of prior inadequate rationale provided by the same examiner in October 2020 and January 2021. The opinion offers no additional insight, fails to answer the inquiry, and defies the provided instructions. Nowhere does the examiner explain whether the inability to provide a more definitive opinion was the result of a need for additional information or exhaustion of the limits of current medical knowledge. Thus, an addendum opinion is required. The Board acknowledges the appellant's representative's argument that the Veteran's disability should have been rated at 100% at the time of death and thus presumed as a contributory cause of death. The Veteran's kidney cancer was rated under diagnostic code (DC) 7528. Under Diagnostic Code 7528, a 100 percent rating is warranted for six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. After six months, the Veteran will undergo a new examination. Any changes in evaluation based upon this examination or any examination thereafter shall be subject to the provisions of 38 U.S.C. § 3.105 (e). If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115 (a)-(b), Diagnostic Code 7528. The record indicates surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedures for the Veteran's kidney cancer ended in 2012. Therefore, the proper application of diagnostic code 7528 hinges on the same inquiry posed in the August 2021 remand. While the Board regrets additional delay, the record is devoid of an adequate and competent medical opinion as to whether the Veteran's kidney cancer metastasized. As this is the fourth remand to address this question, it is clear the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. The matters are REMANDED for the following action: 1. Pursuant to 38 U.S.C. 5109 (d)(1), the issue must be remanded to VBA to provide the required advisory medical opinion. The AOJ should forward the entire claims file to an appropriately qualified independent physician for the purpose of preparing a medical opinion. The report must specifically note review of the file in connection with this opinion. All indicated findings should be reported in detail. 2. After a review of the record, the examiner is asked to determine whether it is at least as likely as not that the Veteran's kidney cancer caused or contributed substantially or materially to his death. In doing so, the examiner should specifically review and comment on the following: a) April 8, 2015 Private Treatment Record and April 9, 2015 Private Treatment Record noting that the immuno profile "favors a renal metastasis over a pancreatic primary" b) Medical literature received by the VA on August 8, 2017 indicating a potential link between pancreatic cancer and kidney cancer 3. The examiner is also asked to opine as to whether it is at least as likely as not that the Veteran's service-connected kidney cancer metastasized to any area of the body, including but not limited to the pancreas. A complete rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.