Citation Nr: 21076617 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-06 316 DATE: December 27, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC), to include 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 1974 to December 1981. The Veteran died in July 2013, and the Appellant is his surviving spouse. In May 2021, the Board of Veterans' Appeals (Board) remanded this appeal for further evidentiary development. DIC, to include service connection for the cause of the Veteran's death The Appellant contends that the Veteran's death is related to his service. At the time of his death (in July 2013), he did not have any service-connected disabilities. His Certificate of Death lists his immediate cause of death as fulminant hepatic failure (onset 1 week), due to, or as a consequence of: hepatocellular carcinoma (onset 6 months), due to, or as a consequence of: hepatitis C (onset multiple years), with no other significant conditions contributing to his death. Regarding the appellant's specific theory of entitlement, the law provides that there are certain diseases that are associated with exposure to contaminants in the water supply at Camp Lejeune and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(7) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(f). Specifically, a veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). Diseases presumed to be associated with exposure to contaminants in the water supply at Camp Lejeune include: adult leukemia, aplastic anemia/myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin lymphoma, and Parkinson's disease. 38 C.F.R. § 3.309(f). Here, the Veteran's service records establish that he was stationed at Camp Lejeune during service for at least 30 days during the period from October 1978 to December 1981. In-service exposure to PCE, TCE, benzene, and vinyl chloride is therefore presumed, as the record contains no affirmative evidence to establish that he was not exposed to these known contaminants in the water supply while stationed at Camp Lejeune. 38 C.F.R. § 3.307(a)(7), (d). However, the Board notes that the Veteran's death certificate shows hepatitis C as an immediate cause of death, with an onset several years prior to his liver cancer. This suggests that, even though the Veteran may have been exposed to contaminated water at Camp Lejeune, his liver cancer may have originated as a result of contracting hepatitis C. 38 U.S.C. § 1113;38 C.F.R. §§ 3.307, 3.309. In other words, a diagnosis of hepatitis C suggests that the origin of his liver cancer is not potential exposure to contaminated drinking water and but, rather, is related to his hepatitis C. Therefore, having found the presumption application, the Board must next consider whether the presumption is rebutted. Under 38 C.F.R. § 3.307(d), the presumption may be rebutted with affirmative evidence to the contrary. That regulation provides that the expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a finding that the disease was not incurred in service. In this regard, the May 2021 Board decision remanded this matter to obtain a posthumous VA medical opinion to establish the nature and etiology of the Veteran's liver cancer, hepatitis C, and any other related disability noted at the time of his death. Specifically, the examiner was to opinion the likelihood that (a) the Veteran's hepatitis C first manifested in service or is otherwise related to service, (b) his death-causing hepatocellular carcinoma was causally related to service, to include any in-service exposure to contaminated water at Camp Lejeune, and (c) his hepatocellular carcinoma is caused by his hepatitis C. The September 2021 VA examiner opined that the Veteran's hepatitis C less likely than not manifested in service or was otherwise related to service. The examiner explained that a review of the records did not confirm existence of hepatitis C or any liver condition during service and even one year after separation from service; therefore, it is less likely than not that the Veteran's hepatitis C first manifested in service or is otherwise related to any in service injury or disease. However, the Board finds this opinion to be inadequate because the examiner merely provided a conclusory statement and relied only on an apparent absence of evidence of diagnosis, treatment, or symptoms of hepatitis C or any liver condition in the Veteran's service treatment records (STRs) or medical records within one year after his separation from service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). In concluding that the Veteran's hepatocellular cancer was less likely than not related to his service, the examiner explained that, while liver cancer is a presumptive condition related to exposure to contaminated water at Camp Lejeune, the Veteran was noted to have liver cirrhosis with a history of alcohol abuse and hepatitis C infection, which are also known to cause hepatocellular carcinoma. Due to the multiple contributory causes, the examiner explained that he could not attribute the cause to one condition without resorting to speculation. However, this opinion focused primarily on the presumption of exposure to contaminated water and did not discuss direct service connection beyond possible exposure to contaminants. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Given the above, the Board finds that remand is necessary to obtain a new posthumous medical opinion regarding the nature and etiology of the Veteran's liver conditions. As such, the matters are REMANDED for the following action: 1. Obtain a VA medical opinion on the nature and etiology of the Veteran's liver cancer and hepatitis C, and any other related disability noted at the time of the Veteran's death. The claims file and a copy of this remand must be made available and reviewed by the examiner. The examiner is requested to opine: (a.) Whether it is at least as likely as not (50 percent or more probable), that the Veteran's hepatitis C first manifested in service or is otherwise related to an in-service injury or disease, to include exposure to contaminated water at Camp Lejeune. (b.) Whether it is at least as likely as not that the Veteran's hepatocellular carcinoma was causally related to his service, to include any in-service exposure to contaminated water at Camp Lejeune. (c.) Whether the Veteran's hepatocellular carcinoma is at least as likely as not caused, or aggravated (worsened), by his hepatitis C. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed disabilities/conditions and any lay evidence. No action is required of the Appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Appellant is also advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.