Citation Nr: 21031886 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-28 528 DATE: May 24, 2021 REMANDED Entitlement to special monthly compensation based on the need for aid and attendance (SMC-AA) is 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 May 1968 to September 1995. He served in the Republic of Vietnam from June 1969 to December 1979. His exposure to herbicide agents is presumed. 38 C.F.R. § 3.306(a)(6)(iii). The Veteran died in April 2012. The appellant, his surviving spouse, has been substituted as claimant as to the issue of SMC-AA, which was pending at the time of the Veteran's death. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision. A February 2019 Board decision, among other things, remanded the appeal for additional development. 1. Entitlement to SMC-AA is remanded. The appellant contends that the Veteran needed the regular aid and attendance of another person due to his service-connected disabilities prior to his death. See NOD (February 2013). The February 2019 Board remand directed the agency of original jurisdiction (AOJ) to readjudicate the issue of entitlement to SMC based on aid and attendance. However, the record indicates that there has been no readjudication of the remanded claim. Rating decisions in February 2019 and March 2019, and the March 2019 supplemental statement of the case (SSOC) do not show any readjudication of the matter. Therefore, to ensure due process of law, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for the cause of the Veteran's death. The appellant contends that the Veteran's death from cancer was due to herbicide agent exposure during his service in the Vietnam War. See NOD (February 2013). The Veteran's death certificate reflects that he died in 2012 from head and neck cancer. See Death Certificate (May 2012). Certain diseases are presumed to be associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). However, oropharyngeal cancer is not a disease listed among those enumerated as associated with herbicide agent exposure. Id. However, that does not preclude the service connection with proof of actual direct causation See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this case, although VA obtained a March 2019 VA medical opinion, it does not address the appellant's contention that the Veteran's cancer was related to his herbicide agent exposure. The opinion acknowledges that head and neck cancer caused of the Veteran's death. However, the opinion does not address whether the Veteran's cancer was at least as likely as not due to herbicide agent exposure during his service. Rather, it addressed whether his stroke was linked to service ("[i]t is less likely than not that the Veteran's stroke is related to his military service... [to include] his service connected diabetes mellitus type 2."). See C&P Exam (March 2019). Therefore, to ensure that VA has met it duty to assist, remand is necessary to obtain a medical opinion on this question. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address the nature and etiology of the Veteran's oropharyngeal cancer, listed on his death certificate as head and neck cancer. The examiner must review the claims file, to include this REMAND. The examiner must opine whether the Veteran's oropharyngeal cancer, listed on his death certificate as head and neck cancer, was at least as likely as not (50 percent or greater probability) proximately due to or the result of his conceded exposure to herbicide agents. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A medical opinion stating only that there is nothing in the medical literature supporting an association between a disability and a Veteran's conceded herbicide agent exposure without discussing the specific facts of the case will render the opinion inadequate. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). 2. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After conducting any other development deemed necessary, readjudicate both the issues of entitlement service connection for the cause of the Veteran's death and entitlement to SMC based on aid and attendance. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.