Citation Nr: 21022632 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-11 090 DATE: April 16, 2021 REMANDED Entitlement to service connection for the cause of Veteran’s death, to include whether compensation under 38 U.S.C. § 1151 is warranted, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1969 to March 1971, to include verified service within the Republic of Vietnam. The Veteran died in February 2014. The appellant is his surviving spouse, who filed an original dependency and indemnity compensation (DIC) claim received by the Agency of Original Jurisdiction (AOJ) on March 31, 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued June and November 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant testified before a Veterans Law Judge on April 30, 2018, with her representative and nephew as witness present. A transcript of this hearing was produced and was associated with the claims file for Board review. On February 3, 2021, the appellant was informed that the Veterans Law Judge who presided over her hearing was no longer employed at the Board. See BVA Letter (Feb. 3, 2021). She was informed that under 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707, she has the right to request a subsequent hearing before the new judge, who would be assigned under 38 C.F.R. § 19.3(b). In March 2021, the appellant clearly and unambiguously waived her right to another hearing. See Return Correspondence (rec’d Mar. 12, 2021). The Board proceeds accordingly. This appeal has been advanced on the Board’s docket. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for the cause of Veteran’s death, to include whether compensation under 38 U.S.C. § 1151 is warranted, is remanded. The appellant asserts that entitlement to service connection for the cause of the Veteran’s death is warranted. Specifically, she asserts that the cause of the Veteran’s death is a result of his exposure to herbicide agents, including Agent Orange, during his service in the Republic of Vietnam. Furthermore, she claims that the Veteran suffered from PTSD, and that such contributed to his death. See generally Hearing Tr. (Apr. 30, 2018). In August 2018, the Board remanded the instant matter to obtain etiology opinion. The Board directed that the etiology opinion address whether the Veteran's pancreatic cancer was either caused or aggravated by exposure to herbicide agents during his Vietnam service, whether the Veteran's PTSD and associated alcohol abuse either caused or aggravated his pancreatic cancer and whether VA failed to properly diagnose the Veteran's pancreatic cancer. Such an opinion was obtained in November 2020. The VA examiner provided a detailed opinion as to whether the Veteran’s PTSD and associated alcohol abuse caused his pancreatic cancer and whether VA failed to properly diagnose the Veteran’s pancreatic cancer. However, the examiner did not address whether the Veteran’s pancreatic cancer was caused or aggravated by exposure to herbicide agents other than to provide a conclusory statement that there was no nexus shown in the literature. With regards to whether the Veteran’s pancreatic cancer was aggravated by his PTSD and associated alcohol abuse, the examiner provided an opinion that the Veteran’s pancreatic cancer clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event or illness. However, this opinion is based on an inaccurate factual premise as there is no evidence that the Veteran’s pancreatic cancer preexisted service. See Reonal v. Brown, 5 Vet. App. 458, 461(1993) (a medical opinion based on an inaccurate factual premise is not probative). On remand, an addendum opinion addressing these contentions should be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Obtain an appropriate VA medical opinion addressing the etiology of the Veteran's cause of death. The claim file, including a copy of this remand, must be made available to the opinion provider in conjunction with the requested opinion. All pertinent symptoms and findings must be reported in detail. Following complete review of the evidence of record, to include the appellant's statements, the examiner must address the following: (A) Is it at least as likely as not that the Veteran's pancreatic cancer was either caused or aggravated by exposure to herbicides during his Vietnam service? The Board notes that the absence of pancreatic cancer from the list of presumptive conditions which are presumed to be the result of exposure to herbicides in Vietnam is not, by itself, a sufficient explanation for a negative opinion-i.e., if it is the examiner's opinion that the Veteran's pancreatic cancer is not associated with his presumed in-service herbicides exposure, then the examiner must do more to explain his or her opinion concerning the probability of a relationship between this particular Veteran's pancreatic cancer and his exposure to herbicides than to merely indicate that pancreatic cancer is not on the list of presumptive diseases. (B) Is it at least as likely as not that Veteran's service-connected PTSD, especially to include the associated alcohol abuse [see July 2010 VA Exam. Rep.], aggravated his pancreatic cancer? All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the opinion provider must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.