Citation Nr: 21013298 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-36 865 DATE: March 9, 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 July 1969 to March 1972. He died in January 2017, and the appellant is his surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 Department of Veterans Affairs (VA) rating decision. In June 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development of the claim. A September 2019 Board decision denied service connection for the cause of the Veteran’s death, and the appellant appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A June 2020 CAVC Order granted a June 2020 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board’s decision and remanding the matter to the Board for action consistent with the JMR. Entitlement to service connection for the cause of the Veteran’s death The parties to the June 2020 JMR agreed that the Board failed to address the appellant’s argument received in October 2017, and that the VA examiner in July 2019 also did not address the argument. It was felt that a remand was needed for the Board to consider the argument and, if necessary, obtain a new VA opinion to address this evidence. Specifically, the appellant cited to a medical opinion that was relied upon in part by the Board in a different case in which service connection for a veteran’s death due to GB was established. That opinion by a neurosurgeon purportedly (as related in the Board decision) stated that there was a great number of Vietnam veterans with a diagnosis of GB and that there was increasing evidence to relate such brain tumors to herbicide exposure. He then concluded there was a “50/50 probability” that the GB of the veteran in question was caused by Agent Orange exposure. The appellant argued that this opinion, which was evidence in a different case, supports a 50 percent probability that Agent Orange (versus random coincidence) caused GB in Vietnam veterans. It is emphasized that as Board decisions are not precedential, it is not bound by the determinations reached in other cases where there are different facts, medical histories, and opinions for consideration. However, the Board also recognizes there is uncertainty in the medical community concerning this medical issue. See the National Academies of Sciences, Engineering & Medicine’s (NAS) Veterans and Agent Orange: Update 2018 (11th Biennial Update 2018) (asserting there was “inadequate or insufficient evidence” to determine whether there is an association between Agent Orange exposure and brain cancer). The Board is also mindful that the VA is required by 38 U.S.C. § 5103A(a) to assist a claimant in a claim of service connection for the cause of a veteran’s death unless “no reasonable possibility exists that such assistance would aid in substantiating the claim.” Given a standard that sets a low bar for triggering assistance, the Board will remand this case to obtain a medical opinion addressing the appellant’s contention. The matter is REMANDED for the following action: Arrange for an oncologist to review the Veteran’s claims file and provide an advisory medical opinion regarding the likely cause (or contributory cause) of the Veteran’s death. On review of the record and pertinent scientific/medical literature, the consulting provider should furnish medical opinions that respond to the following: (a). Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s acknowledged exposure to herbicide agents (Agent Orange) in Vietnam from January 1970 to March 1971 caused or contributed to the development of his fatal glioblastoma (GB)? (A response that relies solely on the fact that GB is not listed among the diseases recognized by the VA under 38 C.F.R. § 3.309(e) as a disease that has a presumed association with herbicide agents is not sufficient; an explanation should be grounded in clinical experience, medical expertise, and relevant published literature.) (b). Please discuss the etiological factors for the Veteran’s GB (e.g., did he have any known risk factors for developing GB?), and the extent to which tactical herbicide (such as Agent Orange) exposure is considered an etiological factor for GB. (c). Specifically comment upon the merits of the appellant’s contention, expressed in a statement received in October 2017, that there was evidence to support at least a 50 percent probability that Agent Orange caused GB in Vietnam veterans. Her statement relied upon a medical opinion by a neurosurgeon (associated with Methodist Neurological Institute), who concluded that there was a 50/50 probability that the GB of the veteran in question (a different Vietnam veteran than in this case) was caused by Agent Orange exposure. The neurosurgeon stated that there was a great number of Vietnam veterans with a diagnosis of GB; that there was increasing evidence to relate such brain tumors to herbicide exposure; that it was possible that Agent Orange exposure may cause the same brain tumors including GB in humans as has been seen in laboratory animals; and that there was an equal chance the incidence of GB in Vietnam veterans may have been caused by Agent Orange versus random occurrence. The consulting provider must include complete rationale with all opinions, citing to relevant evidence, and supporting factual data and medical literature, as appropriate. If the consulting provider is unable to furnish an opinion requested without resort to speculation, (to satisfy legal requirements) the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (additional facts are required, or the examiner does not have the requisite knowledge or training). If such is the case, the provider should identify the other information/further specialist’s opinion that is needed to provide the requested opinion. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.