Citation Nr: 21022333 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-00 822 DATE: April 15, 2021 REMANDED Entitlement to service connection for the cause of Veteran's death to include as due to service-connected kidney cancer is remanded. REASONS FOR REMAND The Veteran had active service from June 1968 to December 1968, including 42 days stationed at Camp Lejeune from September 2, 1968, to October 14, 1968. The Veteran had additional periods of active duty for training between December 1968 and September 1971 as well as verified active service from March 23, 1970, to March 26, 1970. He passed in November 2015. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2017 decision, the Board granted service connection for kidney cancer as presumptively due to exposure to contaminated water at Camp Lejeune while on active duty. The Board remanded the Appellant’s claim for service connection for cause of the Veteran’s death for further development. In a February 2019 decision, the Board denied entitlement to service connection for the cause of the Veteran’s death. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 joint motion for remand (JMR) and Court order, the Board’s denial of entitlement to service connection for cause of death was vacated and remanded back to the Board for further development. Most recently, in October 2020, the Board remanded this matter for further development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Entitlement to service connection for the cause of Veteran's death to include as due to service-connected kidney cancer is remanded. The Appellant is seeking service connection for the Veteran’s cause of death. Specifically, she contends that the Veteran’s pancreatic cancer, which is listed as a cause of death for the Veteran, is related to the Veteran’s service-connected kidney cancer. See January 2020 Court Appellate Br. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA medical opinion for the Veteran’s cause of death. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, in a September 2017 decision, the Board remanded the Veteran’s claim for additional development. Specifically, the RO was to obtain an addendum medical opinion determining whether it was at least as likely as not that the Veteran’s cause of death, cardiopulmonary arrest due to metastatic carcinoma of the pancreas, was related to his service-connected kidney cancer. In doing so, the clinician writing the opinion was requested to comment on the medical evidence submitted by the Appellant that was received by VA on August 8, 2017. On remand, in an August 2018 VA medical opinion, a clinician opined that it was less likely than not that the Veteran’s pancreatic cancer was related to his service-connected kidney cancer. The examiner reviewed the evidence submitted on August 8, 2017 and explained that the Veteran’s pancreatic and renal cancers were separate and distinct. However, the examiner failed to reconcile her opinion with the content of the two submitted medical journal articles indicating a potential link between kidney cancer and pancreatic cancer or provide sufficient rationale for not commenting on this medical evidence. In October 2020, VA secured an opinion to determine if the Veteran’s service-connected kidney condition was related to the Veteran’s pancreatic cancer. The Veteran died of cardiopulmonary arrest due to metastatic carcinoma of the pancreas. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As to the rationale, the examiner explained that renal cell carcinoma and pancreatic cancer are two separate diseases. The examiner noted that renal cell carcinoma is one of the diseases that are caused by exposure to contaminated water at Camp Lejeune. The examiner explained that when renal cell cancer metastasizes it usually goes to the lung or bone. On the other hand, the Veteran’s pancreatic cancer was an incidental finding on an abdominal CT scan in 2015. The examiner stated that, Being located in the tail of the pancreas it has a poorer prognosis and usually metastasizes to liver, lymph nodes and portals vein. It would be highly unusual for a renal cell cancer to metastasize to the tail of the pancreas and vice-versa. The final pathology of the pancreatic mass showed a poorly differentiated pancreatic ductal carcinoma. The examiner reviewed the Appellant’s representative’s assertion that renal cell carcinoma is the most common tumor leading to pancreatic metastasis and noted that one of the exhibits was not reviewable. The examiner addressed the private medical records by explaining that the results from these records were from needle biopsies, which the examiner discounts. The examiner explained that the whole tumor was removed and was available for examination and the examiner did not see any reference to the pancreatic tumor being from a renal cell primary. In the January 2021 addendum opinion, the examiner addressed an article titled “Metastasis of Renal Cell Carcinoma to the Pancreas 13 Years Post-nephrectomy,” because it was not initially tabbed for review. The examiner stated that, The original question was whether there was a greater than 50% probability that the pancreatic malignancy was a metastasis from the kidney. As the article by Thadani stated this was an extremely rare case thus there would be a less than 50% probability that it is service related. The assertion by the Berry Law firm that renal cell carcinoma is the most common tumor leading to solitary pancreatic metastasis is frankly incorrect. The article by Thadani talks about the rarity of pancreatic metastasis from renal cell carcinoma. In March 2021, the Appellant’s representative contends that the examiner failed to explain why the results of the needle biopsies should be discounted. In addition, the Board notes that the examiner stated that the whole tumor was removed and was available for examination, but the examiner did not discuss the results beyond stating that there was no reference to the pancreatic tumor being from a renal cell primary, in the report. In addition, the Appellant’s representative contends that the examiner relied heavily on the article by Thadani in concluding that it would be a rare case for whether the pancreatic malignancy was a metastasis from the kidney. But the examiner did not address the part of the article that states that, “[o]f the primary tumors that can metastasize to the pancreas, renal cell carcinoma (RCC) is the most common....” The Board notes that the examiner concluded that because it was rare it is less than 50 percent likely to have occurred, but the examiner does not discuss the Veteran’s specific etiology and thus the examiner’s opinion is conclusionary. As such, the VA addendum medical opinion is inadequate for adjudicative purposes and a remand is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the medical examiner that provided the October 2020 and January 2021 medical opinions regarding the cause of the Veteran’s death. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file and a copy of this remand to another appropriate medical professional who has the requisite experience to render the requested medical opinion. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. All indicated findings should be reported in detail. 2. After a review of the record, the examiner is asked to determine whether it is at least as likely as not that the Veteran’s cause of death, cardiopulmonary arrest due to metastatic carcinoma of the pancreas, is related to his service-connected kidney cancer. In doing so, the examiner should review and comment on the Appellant’s representative’s March 2021 remarks. Specifically, including but not limited to: 3. Why the needle biopsies referenced in the April 8, 2015 Private Treatment Record and April 9, 2015 Private Treatment Record (noting that the immuno profile “favors a renal metastasis of a pancreatic primary”), were discounted. 4. Explain how the examiner came to the conclusion that the Veteran’s renal cancer did not cause the Veteran’s pancreatic tumor beyond its likelihood is only being a rare occurrence. 5. Explain whether the examiner that removed the whole pancreatic tumor examined it to determine if the pancreatic tumor was caused by the renal cancer primary, and how the examiner would determine if this was completed. 6. A complete rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   7. After completing the above development and any other development deemed warranted, readjudicate the claim. If the benefit sought remains denied, furnish the Appellant and her representative a supplemental statement of the case (SSOC) and the requisite opportunity to respond before the case is returned to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.