Citation Nr: A21020565 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210406-150364 DATE: December 27, 2021 REMANDED Entitlement to service connection for cause of the Veteran's death is remanded. REASONS FOR REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from April 1963 to April 1967. He died in July 1991, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from the February 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Agency of Original Jurisdiction (AOJ) denied the appellant's claim for service connection for the cause of the Veteran's death, to which she timely appealed, electing the modernized review system of the Appeals Modernization Act (AMA) (see 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § § 19.2(d)); directly appealing to the Board of Veterans' Appeals (Board) and requesting direct review of the evidence considered by the AOJ. The Board notes that under Direct Review, the Board may only consider the evidence of record as of the date of the applicable rating decisions (February 2021); therefore, any additional evidence submitted after this time will not be considered in this decision. The appellant contends that the Veteran's death due to glioblastoma multiforme stage IV of the brain ("brain cancer") was directly caused by his in-service exposures to herbicides/dioxins and radiation. As an initial matter, the Board notes the VA has conceded to the Veteran's exposure to herbicides due to his service in Vietnam during the presumptive period. However, brain cancer is not a listed disease for presumptive service connection under 38 C.F.R. § 3.309(e), but consideration of the Veteran's brain cancer as possibly related to his conceded exposure on a direct basis is still warranted. After review of the record, the Board finds that a remand is needed to correct a duty to assist error, when the AOJ failed to provide the appellant with an adequate VA medical opinion assessing the current nature and etiology of the Veteran's cause of death. In February 2021, the appellant was provided three VA medical opinions to assess the etiology of the Veteran's cause of death as it relates to his in-service exposure to herbicides. For each, the examiner provided unfavorable medical opinions. Nevertheless, the Board finds these opinions to be inadequate for adjudicative purposes, as the examiner improperly relied on the Veteran's brain cancer not being a listed disease for presumptive service connection. Additionally, the examiner noted the lack of nexus evidence in the Veteran's records relating the condition to his exposure to herbicides as a basis for denial, without providing any additional discussion on why this is dispositive of the appellant's claim, to include his duty to provide an actual nexus opinion himself. Moreover, the examiner noted that there are many claims and medical literature that link the Veteran's brain cancer to exposures to herbicides, but yet provided a negative opinion based on there being no literature showing an "exact causal relationship," which the Board notes is not the legal standard for finding a favorable opinion. In fact, medical literature has shown that physicians are unaware of the exact causes of cancer (see https://www.ncbi.nlm.nih.gov/books/NBK20362/), and therefore, to base an opinion on this would be improper. Therefore, the Board finds that an addendum VA medical opinion is necessary to adequately address the Veteran's cause of death on a direct basis. Furthermore, the Board notes that the appellant contends that the Veteran was also exposed to radiation in service. A review of the file does not reflect that the Veteran is considered a radiation-exposed veteran, nor that he participated in a radiation-risk activity, therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(d) is not warranted. However, brain cancer is considered a radiogenic disease under 38 C.F.R. § 3.311. Therefore, the Board finds that the VA should attempt to verify whether the Veteran was exposed to any ionizing radiation, provide a dose estimate, and provide an etiology opinion on whether the Veteran's brain cancer was a result from his exposure to ionizing radiation during active service. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Send the claims file back to the February 2021 VA examiner to provide the appellant an addendum VA medical opinion to determine the nature and etiology of the Veteran's brain cancer. If the February 2021 VA examiner is not available, forward the claims file to another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain cancer is etiologically related to his active duty service, to include the conceded in-service exposure to herbicides/dioxins. Please note: the examiner must address the numerous medical literatures submitted by the appellant and her representative regarding the relationship between brain cancer and exposure to herbicides/dioxins. Additionally, the examiner must address the February 2021 examiner's statement that "there are many claims and medical literatures that link the Veteran's cause of death to exposures to herbicides." (b) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature and onset of symptoms. The examiner is advised that the appellant is competent to report symptoms, and that her reports must be considered in formulating the requested opinion. (c) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). 2. Conduct any additional development, if necessary, to include requests for relevant records concerning the Veteran's contended exposure to radiation. 3. After conducting the necessary development, if any, refer all records containing information pertinent to the Veteran's in-service radiation exposure to the Under Secretary for Health for a radiation dose estimate, to the extent feasible, based on available methodologies. See 38 C.F.R. § 3.311 (a)(2)(iii). 4. If the dose estimate is above zero, the claims file should be referred to the Under Secretary for Benefits for further consideration in accordance with paragraphs (c)-(e) of section 3.311. 5. If the dose estimate is zero, provide the appellant a VA medical opinion by an appropriate clinician to determine the current nature and etiology of the Veteran's brain cancer. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain cancer was incurred or aggravated during active duty service, or is otherwise etiologically related to his active duty service, to include the contended exposure to radiation. (b) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature and onset of symptoms. The examiner is advised that the appellant is competent to report symptoms, and that her reports must be considered in formulating the requested opinion. (c) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.