Citation Nr: 21075748 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-40 695 DATE: December 21, 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 from October 1954 to September 1956. He died in October 2016. The appellant, who is the Veteran's surviving spouse, has been properly substituted for the Veteran. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and March 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In July 2021, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to service connection for the cause of the Veteran's death is remanded. Appellant contends that the Veteran died from liver cancer that was due to his exposure to toxic water while stationed at United States Marine Corps Base Camp Lejeune. The Veteran died in February 2002. The Veteran's death certificate lists the immediate cause of death as respiratory failure due to, or as a consequence of, hepatic failure and cirrhosis. The Veteran was diagnosed with cirrhosis of the liver secondary to hepatitis C. An October 2001 VA treatment record documents the Veteran's denial of intravenous drug use. The Veteran believed that he developed hepatitis C as a result of contacts with prostitutes in Vietnam during his active service. A March 1971 report of medical history documented that the Veteran had a diagnosis of gonorrhea in January 1971. Although the Veteran claimed he did not use intravenous drugs, the record reflects that he used alcohol, marijuana, cocaine, and opiates. Liver cancer is one of the eight diseases found to be presumptively related to exposure to contaminants in the water supply at United States Marine Corps Base Camp Lejeune is liver cancer from August 1, 1953, to December 31, 1987. 38 C.F.R. §§ 3.307, 3.309. A military personnel record indicates that the Veteran served at Camp Lejeune, North Carolina, from September 16, 1969 to November 5, 1969. At the time of the Veteran's death, the record does not reflect a definitive diagnosis of liver cancer. In July 2001, an abdominal computed tomography (CT) scan was undertaken to evaluate the Veteran for a liver transplant. The impression was that the Veteran had two lesions at the periphery of the liver. These lesions were reported to be highly suspicious for hepatocellular carcinoma or possibly hypervascular metastasis. Another lesion in the lateral section of the liver was reported to be atypical but most consistent with hemangioma. An October 2001 entry from a VA oncologist noted that the Veteran was treated by a private oncologist who found that he had liver cancer, but no biopsy was done. An October 2001 addendum notes that the VA oncologist called the private oncologist and was told by him that the lesion was "probably hepatoma." In March 2018, the appellant submitted a medical opinion written by a private doctor. According to the doctor, the appellant related that the Veteran had been diagnosed with liver cancer at Emory Hospital. The doctor opined that it was more likely than not that the Veteran meets the VA's criteria for cause of death for his reported diagnosis of liver cancer as he was exposed to contaminated water while stationed at Camp Lejeune. However, as the record does not reflect a definitive diagnosis of liver cancer, the Board does not find the opinion to be probative, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board finds that remand is warranted to obtain medical opinions addressing (1) whether the Veteran had liver cancer that either proximately caused or contributed to his death and (2) whether the Veteran's hepatitis C was incurred in or caused by his active service. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain medical opinions from an appropriate medical professional regarding the etiology of the Veteran's hepatitis C and whether the Veteran had a diagnosis of liver cancer. Provide the examiner with the claims file, including a copy of this remand. The examiner should review the claims file and this remand and provide opinions on the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran had a diagnosis of liver cancer prior to his death. (b.) If the Veteran had a diagnosis of liver cancer, the examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the liver cancer either proximately caused or contributed to his death. (c.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hepatitis C was incurred in or caused by the Veteran's active service? (d.) If the hepatitis C was incurred in or caused by the Veteran's active service, the examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the hepatitis C either proximately caused or contributed to his death? The examiner must provide a complete rationale for any opinion provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, the examiner should indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any determination remains unfavorable to the appellant, send the appellant and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.