Citation Nr: 22014646 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 13-33 093 DATE: March 14, 2022 REMANDED Entitlement to service connection for soft tissue carcinoma, also claimed as appendiceal and colonic cancer, metastasized to the right lung, to include as due to exposure to herbicide agents, 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 April 1970 to November 1971. The Veteran passed away in January 2015. The Appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal of April 2012 and March 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2020 decision, the Board denied the Appellant's claims. The Appellant appealed this decision to the U.S. Court of Appeals for Veterans Claims (the Court). In May 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested a vacatur and remand of the Board's July 2020 decision. In December 2015 and July 2019, the Appellant testified during video conference hearings before a Veterans Law Judge who is no longer with the Board of Veterans Appeals. In December 2021, the Appellant was notified that the Veterans Law Judge who conducted the hearings was no longer employed at the Board and that she was entitled to an optional hearing. However, the Appellant did not elect to have a new hearing as no response to the letter was provided. The Board acknowledges that the Appellant executed a signed VA Form 21-22 appointing Joseph R. Moore as her power of attorney. Given such, the power of attorney previously held by Veterans of Foreign Wars of the United States was revoked upon execution of the August 2021 VA Form 21-22. The Board also acknowledges that there is an outstanding extension request of record. See December 2021 Correspondence. However, the Board finds that there is no prejudice to the Appellant in remanding the claims as this remand affords the Appellant's attorney additional time to submit any evidence or argument. As explained below, the Board is remanding these claims for further development consistent with the instructions in the May 2021 Joint Motion for Remand. 1. Entitlement to service connection for soft tissue carcinoma, also claimed as appendiceal and colonic cancer, metastasized to the right lung, to include as due to exposure to herbicide agents, is remanded. The JMR which was granted by the Court in May 2021 stated that the April 2020 VA medical opinion concerning the Veteran's cancer was inadequate. The April 2020 opinion was inadequate because the Veteran served in Vietnam and is therefore presumed to have been exposed to herbicide agents, but the opinion discussed deployment to the Gulf War instead. Therefore, remand is warranted to obtain a new VA opinion that addresses whether the Veteran's cancer was related to his exposure to Agent Orange. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). 2. Entitlement to service connection for the cause of the Veteran's death is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for soft tissue carcinoma could significantly impact a decision on the issue of entitlement to service connection for the cause of the Veteran's death, the issues are inextricably intertwined. A remand of the claim for entitlement to service connection for the cause of the Veteran's death is required. The matters are REMANDED for the following actions: 1. Provide the Appellant the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Appellant, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Appellant and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from an appropriate clinician concerning the cause of the Veteran's soft tissue carcinoma, also claimed as appendiceal and colonic cancer, metastasized to the right lung. The clinician should provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's appendiceal cancer, which metastasized to the lungs and bones, was causally or etiologically related to the Veteran's active service, to include his presumed exposure to herbicide agents? The clinician must provide an adequate rationale for any opinion given. The clinician must address the opinions of the private physician that the Veteran's cancer may be due to mutations caused by exposure to herbicide agents, including Agent Orange. See Medical Treatment Record, Non-Government Facility, January 16, 2015, p3. (b.) The clinician is to be made aware that the Veteran served in the Republic of Vietnam during the Vietnam War and that he is therefore presumed to have been exposed to herbicide agents. (Continued on Next Page) 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the claims. If any benefit sought on appeal remains denied, provide the Appellant and her representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.