Citation Nr: 21042825 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 10-22 623A DATE: July 14, 2021 REMAND Entitlement to service connection for glioblastoma multiforme (hereafter referred to as a "brain tumor"), on the basis of substitution for accrued benefits, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1973 to September 1978, May 1999 to July 1999, and April 2002 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran died in June 2010, and the Appellant is her surviving spouse. In a September 2012 Memorandum, VA recognized the Appellant as a valid substitute for this claim. Thus, the Appellant now stands in the shoes of the Veteran for purposes of adjudicating this claim to completion. See 38 U.S.C. § 5121A(a)(1); Todd v. McDonald, 27 Vet. App. 79, 89 n.5 (2014) (holding that under 38 U.S.C. § 5121A, a decision as to entitlement to accrued benefits is not restricted to consideration of the evidence contained in the claims file at the time of the deceased VA claimant's death); 38 C.F.R. §§ 3.1000, 3.1010(a). A Board hearing was conducted at the RO in Philadelphia, Pennsylvania. A transcript of this hearing is contained within the electronic claims file. The original Veterans Law Judge (VLJ) who presided over the Appellant's hearing no longer is employed by the Board. In December 2020, the Board notified the Appellant of that fact and afforded him the opportunity to attend another hearing. The Board explained that failure to reply within thirty days to that letter would result in the Board proceeding with the evidence of record. To date, the Appellant has not replied, so the Board may proceed with adjudication, satisfied that his due process rights have been respected. This claim unfortunately has been pending for over a decade and has been the subject of numerous Board remands and an appeal to the United States Court of Appeals for Veterans Claims (CAVC). Throughout that time, the Veteran, while she was alive, and the Appellant collectively have advanced that the Veteran's brain tumor was caused by her exposure to environmental hazards in Oman, as well as exposure to pyridostigmine bromide (PB). September 26, 2014, Buddy Statement; June 2, 2013, Hearing Transcript (Tr.) (the Appellant mistakenly testified that the Veteran served in Amman, Jordan, but he meant the country of Oman). Thus, the Board as briefly as possible will provide a recitation of the procedural history as it is relevant to this remand. The Board first addressed this claim in a March 2014 decision ("Decision I") when it remanded it for VA to obtain a medical opinion as to whether the Veteran's brain tumor was related to environmental exposures in Oman. VA obtained that opinion in April 2014. In an October 2014 decision ("Decision II"), the Board denied the claim. In February 2015, the Appellant expressed dissatisfaction with Decision II. The Board construed that correspondence as a motion for reconsideration, which it denied, and, in the alternative, forwarded the Appellant's correspondence to the CAVC in case he intended it to be an appeal of the Board's decision. The latter proved to be true. The Appellant and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved the appeal by way of a Joint Motion for Remand (JMR). The Parties agreed that the Board failed to consider medical literature submitted by the Appellant between the time it secured the April 2014 medical opinion and Decision II. In a February 18, 2016, Order, the CAVC adopted the Parties' JMR and vacated Decision II, remanding the issue back to the Board. In December 2016, the Board remanded the claim so that VA could obtain an opinion that responded to the medical literature and Appellant's PB contention ("Decision III"). That addendum was obtained in March 2017 and provides a negative etiological opinion. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a VLJ shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). The Board finds that remand again is unavoidable to correct an oversight from Decision II. There, the Board correctly noted that the Veteran, pursuant to her service in Oman, is a Persian Gulf veteran and that her brain tumor was not an undiagnosed illness. Decision II at 7; see 38 C.F.R. § 3.317(a)(2)(i), (e)(2). The Board unfortunately stopped short and only conducted half the analysis under those regulations; it did not address whether the Veteran's brain tumor was a medically unexplained chronic multi-symptom illness (MUCMI). For purposes of subsection (a)(2)(i)(B), a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Since this case has been pending, the CAVC issued Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018), in which it held that a chronic multi-symptom illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive. Conversely, an illness is not a MUCMI where both the etiology and pathology are partly understood. Furthermore, the determination of whether an illness is a MUCMI is to be done on a case-by-case basis. That is to say, the question is not whether the illness at hand generally is considered a MUCMI, but whether the illness in the veteran at hand is a MUCMI. Id. at 392. The phrase "objective indications of a qualifying chronic disability," as it appears in subsection (a)(1), include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness (subsection (a)(2)(i)(A)) or a MUCMI (under subsection (a)(2)(i)(B)) include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). As the Board previously noted, the "Veteran's headaches . . . had not begun until early 2005," and those were the Veteran's earliest symptoms of her brain tumor. Decision II at 10. The record also contains contentions that the Veteran's brain tumor caused difficulty with her memory. September 26, 2014, Buddy Statement; Tr. at 12. Given that the regulations contemplate headaches and other neurological symptoms as a possible MUCMI, the Board erred when it did not request an opinion to determine whether the Veteran's brain tumor has an inconclusive etiology or pathophysiology, possibly qualifying the Veteran's brain tumor for presumptive service connection. See Stewart, 30 Vet. App. at 389; 38 C.F.R. § 3.317(a)(2)(i)(B). Thus, remand is required to secure that opinion. See 38 C.F.R. § 20.904(a). The matter is REMANDED for the following actions: 1. Obtain an addendum opinion. The examiner should address the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's brain tumor is a diagnosable but medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms due to the Veteran's Persian Gulf service? The examiner must explain why or why not. In addressing whether a condition is a diagnosable but MUCMI, the examiner must discuss both the etiology AND pathophysiology of the claimed condition with specific emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran's unique circumstances (i.e. Is this etiology inconclusive, partially understood, or conclusive? Is this pathophysiology inconclusive, partially understood, or conclusive?) Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Conduct any other development deemed necessary and then readjudicate the Appellant's claim. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.