Citation Nr: 21032730 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-23 220 DATE: May 27, 2021 REMANDED Entitlement to service connection for glioblastoma multiforme (GBM) is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 USC 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to February 1974. He died in September 2012. The appellant is his surviving spouse, who has been properly substituted in this appeal. This matter originates from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019, at which time the Board denied the issues on appeal. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in June 2020, the Court granted a Joint Motion for Remand (JMR) that the parties filed vacating the Board's May 2019 decision and remanding the matter back to the Board for action consistent with the JMR. The parties in the JMR found that VA did not fulfill its duty to assist the appellant with this claim by failing to obtain outstanding VA medical center (VAMC) records that were identified in the record, and by relying on an inadequate medical opinion to decide the claim. Consequently, the parties directed in the JMR that VA obtain the outstanding VAMC records, to specifically include records from the VAMC in Chillicothe, and thereafter obtain an adequate medical opinion based on a complete record. In January 2021, the appellant's representative informed VA that he was enclosing the outstanding VAMC treatment records from the Chillicothe VAMC on a CD-ROM and he asked that the records be reviewed prior to deciding the claims as they were directly relevant to the issues on appeal. He explained that the records were on a CD-ROM because there were so voluminous. Thereafter, in February 2021, a memorandum was placed in the Veteran's claims file stating that the CD-ROM was damaged and that the records contained therein were unscannable. Accordingly, so as to comply with the directives of the JMR and to ensure a complete record, this case is being remanded to the Agency of Original Jurisdiction so that the outstanding VA treatment records, to specifically include records from the VAMC in Chillicothe, can be associated with the claims file and so that a new medical opinion can be obtained that is based on a complete record. The Board notes that the Veteran's representative submitted a private medical opinion in January 2021 which supports the Veteran's claim, although it is not clear from this opinion whether the outstanding VA medical records were considered. In any event, the new VA medical opinion should include consideration of the January 2021 private medical opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, to specifically include records from the VAMC in Chillicothe, and associated them with the claims file. 2. Thereafter, arrange for the claims file to be forwarded to a physician with appropriate expertise in the pathogenesis of brain tumors, for review and an advisory medical opinion regarding the cause of the Veteran's death in September 2012. On review of the record, consideration should be given to the August 2012 addendum medical opinion from the Veteran's treating oncologist, Dr. E.J., as well as the VA medical opinion dated in December 2017, and the private medical opinion from Dr. K. in January 2021. Consideration should additionally be given to pertinent scientific/medical literature. The consulting provider should furnish a medical opinion that responds to the following. (a) Is it at least as likely as not (a 50 percent or higher probability) that the Veteran's fatal glioblastoma multiforme (GM) was etiologically related to service, specifically to his acknowledged exposure to herbicide agents (Agent Orange) in Vietnam (a response that relies solely on the fact that GM is not listed among the diseases recognized by VA under 38 C.F.R. § 3.309(e) as a disease that has a presumed association with herbicide agents is not sufficient; an explanation should be grounded in clinical experience, medical expertise, and relevant published literature). (b) The consulting provider must include rationale with all opinions. If consultation with a physician with expertise in [another] specific area of medicine is deemed necessary for an opinion sought, such should be arranged. (c) If the consulting provider is unable to provide an opinion requested without resort to speculation, the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, or by deficiency in the record (i.e., additional facts are required), or the provider lacks the necessary knowledge or training. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.