Citation Nr: 21026281 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 06-35 450 DATE: April 30, 2021 REMANDED Entitlement to service connection for death is remanded. REASONS FOR REMAND The Appellant is the surviving spouse of a deceased veteran (the Veteran) who served honorably in the U.S. Army from July 1966 to July 1969, including service in Vietnam. Unfortunately, the Veteran passed away in December 1977, and the Appellant subsequently filed the instant claim in December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2005 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) which reopened and denied the Appellant’s claim. In November 2017, the Appellant elected to waive a Board hearing and to proceed with an informal hearing at the AOJ. The Appellant’s claim was most recently denied in a February 2020 Board decision, which the Appellant appealed to the Court of Appeals for Veterans Claims (the Court). In December 2020, the Court granted a Joint Motion for Remand (the December 2020 JMR) and vacated and remanded the February 2020 Board decision pertaining to the Appellant’s instant claim. Entitlement to service connection for death is remanded. Unfortunately, the Appellant’s claim for service connection for cause of death must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. The Appellant contends that the Veteran’s December 1977 death was casually related to his military service, to include his exposure to herbicide agents as well as his diabetes mellitus, cardiovascular disease, and brain cancer diagnosed as astrocytoma, grade I. In this case, the Veteran’s December 1977 death certificate lists the Veteran’s immediate cause of death as follows: cardio-respiratory arrest due to or a consequence of astrocytoma; no contributory causes of death are listed on the death certificate. At the time of his death, the Veteran had not been awarded service connection for any of his disabilities. As noted above, the Court’s December 2020 JMR vacated and remanded the Board’s February 2020 denial of the Appellant’s claim on the following grounds: (1) a September 5, 2017, VA examination report notes that the common symptoms of astrocytoma include the following: changes in mental state; coma; dizziness; double vision; drowsiness and lethargy; eyesight problems; headaches; nausea; numbness; obtuseness; pain that can become more intense while coughing; personality changes; poor balance; seizures; speaking difficulties; vomiting; and weakness; (2) the September 5, 2017, VA examination report also indicates that the Veteran’s astrocytoma less likely than not manifested within one year of his discharge from service as the “[b]ody of evidence is silent for any of the common symptoms suggestive of astrocytoma. . . within a year after service discharge”; (3) however, the record contains evidence indicating that the Veteran experienced personality changes and headaches within one year of his separation from service, to include the following: (a) a January 4, 2017, statement submitted by the Appellant stating that “shortly after [the Veteran’s] return [from Vietnam],” she began to notice “signs of his personality and behavior changing”; (b) the Appellant goes on to describe the Veteran “like a [Jekyll and] Hyde”; (c) a December 18, 2005, statement submitted by the Appellant stating that the Veteran had headaches and “became violent and abusive”; (d) a January 12, 1978, statement submitted by the Veteran’s parent addressed to Congressman Dickerson stating that, after the Veteran’s service, he experienced “severe headaches”; (e) an October 31, 1975, statement prepared by Dr. G indicating that the Veteran reported hearing problems and a “nervous condition” after his military service. The Court’s December 2020 JMR concluded that the foregoing evidence conflicts with the supporting rationale for the negative opinion rendered by the September 5, 2017, VA examination report, namely, that the evidence of record “is silent for any of the common symptoms suggestive of astrocytoma . . . within a year after service discharge.” When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert’s judgment on a medical question, rely upon accurate factual premises, including the Veteran’s lay statements regarding symptomatology and the relevant medical evidence of record, conduct any necessary testing, and present a fully articulated, sound rationale relating to all potential theories of entitlement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, a medical opinion lacks probative value to the extent it relies upon an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Accordingly, in light of the foregoing, the Appellant’s claim must be remanded for another VA opinion to determine whether the Veteran’s cause of death was related to his active military service in order that the Board can make a fully informed decision as to whether the Veteran’s causes of death were causally related to his active military service and whether service connection is warranted on any basis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.312(c). Moreover, due to the heightened level of medical complexity and controversy involved in the Appellant’s service connection claim, the Board concludes that the issues involved warrant an advisory medical opinion rendered by an independent medical expert. See 38 U.S.C. § 5109. Thus, upon remand, the AOJ shall obtain an advisory medical opinion from an independent medical expert as set forth in the directives below. See id. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, obtain an addendum opinion as to the etiology of the Veteran’s cause of death, to include cardio-respiratory arrest due to or a consequence of astrocytoma, grade I. Due to the complexity and controversy of this claim, this opinion must be obtained by an appropriate specialist pursuant to 38 U.S.C. § 5109. The entire claims file must be reviewed by the examiner, and both an opinion and a rationale are requested as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s astrocytoma had its onset during his military service or within one year following his separation from service, to include as a result of his presumed exposure to herbicide agents, including but not limited to Agent Orange. The examiner must address all relevant and competent lay and medical evidence of record, including but not limited to the following: (i) the September 5, 2017, VA examination report noting that the common symptoms of astrocytoma include the following: changes in mental state; coma; dizziness; double vision; drowsiness and lethargy; eyesight problems; headaches; nausea; numbness; obtuseness; pain that can become more intense while coughing; personality changes; poor balance; seizures; speaking difficulties; vomiting; and weakness; (ii) evidence indicating that the Veteran experienced personality changes and headaches within one year of his separation from service, to include the following: a. the Appellant’s January 4, 2017, statement indicating that “shortly after [the Veteran’s] return [from Vietnam],” she began to notice “signs of his personality and behavior changing”; b. the Appellant’s January 4, 2017, statement indicating that the Veteran behaved “like a [Jekyll and] Hyde”; c. the Appellant’s December 18, 2005, statement indicating that the Veteran had headaches and “became violent and abusive”; d. the January 12, 1978, statement submitted by the Veteran’s parent addressed to Congressman Dickerson stating that post-service, the Veteran experienced “severe headaches”; e. the October 31, 1975, statement prepared by Dr. G indicating that the Veteran reported hearing problems and a “nervous condition” after his military service. The examiner is requested to include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.