Citation Nr: 21021593 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-00 858 DATE: April 13, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to dependency and indemnity compensation under 38 U.S.C. § 1318 is remanded. Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1971 to August 1974. For his meritorious service, the Veteran was awarded (among other decorations) the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. The Veteran died in April 2017. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at an April 2021 videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has not yet been associated with the file. The Board notes this is of no prejudice to the appellant as the Board is remanding the appeal for further development, and a copy of the hearing transcript will be associated with the claims file in the ordinary course of business. The Board also notes that a claim by a surviving spouse for dependency and indemnity (DIC) compensation will also be considered to be a claim for accrued benefits. 38 C.F.R. § 3.155. On the appellant’s notice of disagreement (NOD), the appellant listed disagreement with the June 2001 rating decision, which denied DIC and accrued benefits. When liberally construing the NOD in the appellant’s favor, the issues on appeal are as listed on the title page. REASONS FOR REMAND 1. Entitlement to service connection for the cause of the Veteran’s death 2. Entitlement to DIC under 38 U.S.C. § 1318 3. Entitlement to accrued benefits Although the Board regrets additional delay, additional development is necessary to fully adjudicate the appellant’s claims. The appellant contends that the Veteran’s acute myelogenous leukemia (AML) and myelodysplastic syndrome (MS) were related to the Veteran’s military service, consistent with the Veteran’s own contentions during his lifetime, and that AML and MS ultimately caused his death. Specifically, she contends, as did the Veteran, that his AML and MS were due to herbicide exposure. In this case, current diagnoses for AML and MS are established. See March 2017 Hematologic and Lymphatic Conditions Disability Benefits Questionnaire. The Veteran had active duty service in Vietnam and as such, is presumed to have been exposed to herbicide agents, satisfying the in-service occurrence requirement. The Veteran’s death certificate lists AML and MS as the cause of his death. At the time of his death, post-traumatic stress disorder (PTSD) was the Veteran’s only service-connected disability and was evaluated as 100 percent disabling from September 15, 2015. In support of her claims, the appellant relies on an October 2017 opinion letter from the Veteran’s private oncologist, Dr. J.C., stating that “it is very possible” the Veteran’s AML resulted from in-service herbicide exposure. See November 2017 Notice of Disagreement. However, the Board finds that use of the language of “very possible” renders the opinion speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Additionally, Dr. J.C. provided no rationale for his opinion. An adequate rationale for any opinion reached is required. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). For these reasons, the October 2017 private examiner’s opinion is of minimum probative value. The Board also acknowledges a prior Board decision submitted by the appellant that granted service connection for AML as due to exposure to herbicide agents. The decision is signed by a Board employee other than the undersigned VLJ. With respect to this submission, the regulations make clear that decisions of the Board are not binding as to other veterans. 38 C.F.R. § 20.1303. Although the Board strives for consistency in issuing its decisions, previously-issued Board decisions will be considered binding only with regard to the specific case decided. Id. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to one another, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. In November 2017, a VA examiner opined that it was less likely than not that the Veteran’s AML and MS were due to herbicide exposure and also less likely than not that his herbicide exposure contributed substantially or materially to cause his death. The examiner noted that neither AML nor MS is a disease that is associated with exposure to herbicide agents under 38 C.F.R. § 3.309. The examiner also stated that there is no convincing evidence that Agent Orange is causal for AML or MS. The examiner noted “evidence of increased risk ans association, but not documentation of causality needed to provide a nexus.” The evidence the examiner references is the prior Board decision submitted by the appellant which, as discussed above, is not binding as to this Veteran. The Board finds the examiner’s opinion inadequate as it relies on medical evidence submitted in connection with a different veteran which was not related to this particular Veteran’s case. Additionally, the record shows the Veteran filed claims for service connection for both AML and MS, which were pending at the time of his death. The Board notes the November 2017 examiner did not address an UptoDate article the Veteran submitted in March 2017 with his claims that suggests a relationship between MS and environmental exposures to toxins. This should be undertaken on remand. Thus, a new medical opinion is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA provided an examination, even if not required to do so, an adequate one must be provided). Additionally, as noted service connection for PTSD was in effect. While the appellant has presented little or no argument with regard to whether the Veteran’s service-connected PTSD caused or contributed to death, a theory of entitlement has been raised by the record. 38 C.F.R. § 3.312; Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000). Thus, consideration of whether the service-connected PTSD caused death, contributed substantially or materially to cause death, or aided or lent assistance to the production of death is needed. The requested development on the appellant’s cause of death claim is inextricably intertwined since a grant of that claim could moot further consideration of her claim for dependency and indemnity compensation under 38 U.S.C. § 1318. As such, the Board will defer consideration of this issue. The matters are REMANDED for the following action: 1. Provide the claims file, including a copy of this Remand, to an appropriate clinician to obtain a medical opinion regarding the nature and etiology of the Veteran’s acute myelogenous leukemia and myelodysplastic syndrome. The examiner must indicate in the report that the claims file was reviewed. The examiner should address the following inquiries: (a) Whether it is as at least as likely as not that the Veteran’s acute myelogenous leukemia and myelodysplastic syndrome were in any way related to his active duty service, to include conceded exposure to herbicide agents. The examiner is advised that the absence of acute myelogenous leukemia and myelodysplastic syndrome from the list of conditions which are presumed to be the result of exposure to herbicide agents in Vietnam is not, by itself, a sufficient explanation for a negative opinion. The examiner must specifically address the relationship between herbicide agent exposure and acute myelogenous leukemia and myelodysplastic syndrome. Consideration of any articles of record is also requested. (b) Whether it is at least as likely as not the service-connected PTSD caused, substantially or materially contributed to cause, or aided or lent assistance to cause, the Veteran’s death. A rationale for all opinions reached must be provided. The examiner should discuss the pertinent supporting clinical data and medical/scientific data upon which the opinion is based. If the examiner cannot provide such opinions, he or she must explain why this is so (i.e., that any member of the medical community at large could not provide such an opinion without resorting to speculation). 2. After completing #1, readjudicate the claims on appeal. If the issues remain denied, issue a supplemental statement of the case to the appellant, including all applicable laws and regulations and reasons and bases, addressing entitlement to dependency and indemnity compensation under 38 U.S.C. § 1318, service connection for accrued benefits purposes, and service connection for the cause of the Veteran’s death. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.